# In Re Nakoski Ex Rel. Magisterial District 06-3-01 > Court of Judicial Discipline of Pennsylvania · June 3, 2001 · 742 A.2d 260 URL: https://www.frixlaw.com/law-library/cases/9732676 ## Case - **Full name:** In Re Peter Paul NAKOSKI, Jr., District Justice in and for Magisterial District 06-3-01 - **Court:** Court of Judicial Discipline of Pennsylvania - **Decided:** June 3, 2001 - **Citations:** 742 A.2d 260; 1999 WL 1095496 - **Precedential status:** Published - **Opinion:** Dissent by Byer - **Judges:** Sylvester, Messa, McEwen, Sweeney, Panella, Byer, Russo - **Cited by:** 4 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/9732676 ## Opinion text BYER, Judge, dissenting.. At a continuing education course for district justices, the instructor demonstrated a point concerning the absence of probable cause by asking the rhetorical question, “[i]t’s not unlawful or illegal to be a black man, is it?” Respondent, a member of the Pennsylvania judiciary, expressed disagreement with the instructor by answering the question, “yes,” thus expressing that it is “unlawful or illegal to be a black man.” (Majority Opinion: Findings of Fact: 5, 6). Respondent followed his statement by saying “[tjhey’re all in jail. They’re the ones doing all the robberies and burglaries.” (Majority Opinion: Finding of Fact: 12). There is no evidence that Respondent’s tone of voice was facetious. Respondent did nothing to clarify his remarks or to let people know that he was engaging in sarcasm or making an attempt at satire. Instead, the uncontradicted evidence (which the Majority Opinion does not mention) is that Respondent, immediately after his offensive remarks, then turned to a district justice with a Hispanic surname who was identified as the “only minority” present (Tr. 27) and said, “no offense to you.” (Tr. 26). One of the district justices who attended the course reported the incident to the Judicial Conduct Board. The Board filed a disciplinary complaint against Respondent. The majority concludes that Respondent’s conduct, while deserving criticism, did not violate the Rules Governing Standards of Conduct of District Justices. I dissent, because even if I assume that Respondent is not a racist, his public comments were of a racist nature which, if left unsanctioned, would undermine the public’s expectation that members of the Pennsylvania judiciary administer equal justice, regardless of race. Thus, while I agree that Respondent’s poor judgment and offensive conduct merits criticism, I would go further and find that Respondent has violated the Rules Governing Stan *271 dards of Conduct of District Justices and warrants disciplinary sanction. Specifically, I would hold that Respondent’s racist statements constitute (1) a violation of Rule 2A of the Rules Governing Standards of Conduct of District Justices and (2) conduct which brings the judiciary into disrepute, under Art. V, § 18(d)(1) of the Constitution. Judicial officers must at all times not only be concerned with maintaining actual impartiality, but also with the appearance of impartiality. Rule 2A, like Canon 2A of the Code of Judicial Conduct directs: A district justice shall respect and comply with the law and shall conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Even if Respondent did not intend for his comments to express his true personal opinion, the nature and manner of his expression created a strong likelihood that others hearing his words would believe that he meant what he said. Upon hearing such words, those persons could reasonably believe that the Respondent could not perform his duties with impartiality. At the time he spoke those words, he said nothing to disabuse persons hearing them that he did not believe what he said. Disavowing the words only upon threat of discipline cannot erase the impact of the words, and, even if one assumes that his proffered explanation at trial is true — that he was seeking to engage in discussion of a political issue — his injudicious decision to initiate a discussion in a seemingly racist manner, without ever attempting to create a contrary impression, nevertheless constitutes a violation of the Rule. Support for this conclusion can be found in other jurisdictions. In In re Stevens, 31 Cal.3d 403 , 183 Cal.Rptr. 48 , 645 P.2d 99 (1982), a judicial officer used racial epithets in presence of court personnel and in chambers. Despite testimony of his equitable and impartial performance of duties, and evidence of lack of actual bias, the court agreed with the conclusions of the California Commission on Judicial Performance that the conduct was so prejudicial to the administration of justice as to bring the judicial office into disrepute. In In re Goodfarb, 179 Ariz. 400 , 880 P.2d 620 (1994), a judge used an obscene racist expression allegedly in jest in his chambers in the presence of counsel during a pre-hearing discussion. The Commission on Judicial Conduct considered various mitigating and aggravating factors. As a mitigating factor, “the Commission found that Judge Goodfarb’s use of racist and profane language was just that, and did not interfere with his ability to fairly decide cases.” 179 Ariz. at 401 , 880 P.2d at 621 . The Commission held the use of racial epithets, even when allegedly “in jest,” to constitute violations of Canons 1, 2A, and 3A, and conduct so prejudicial to the administration of justice as to bring the judicial office into disrepute. 179 Ariz. at 401-2 , 880 P.2d at 621-2 . On appeal, the Supreme Court of Arizona noted that “[tjhis case does not involve a judge’s private life. This misconduct occurred in the course of official judicial proceedings. A judge must be able to distinguish between the two, and a consistent inability to do so raises profound questions about the judge’s judgment.” 179 Ariz. at 403 , 880 P.2d at 623 . Even if he did not mean to do so, Respondent’s racist statements, uttered in public at an official function, created the unmistakable impression that this judicial officer harbored a bias against African-Americans who might appear before him. This is sufficient to find a violation of Rule 2A. The Board has no burden to establish the absence of possible explanations or excuses for the statements in order to carry its burden of proof. The Board needed only to prove that the judicial officer made remarks that create an appearance of partiality. The words the Respondent used clearly create the impression that the speaker is of the opinion that only African-Americans commit cer *272 tain crimes. Such conduct by judicial officers cannot be tolerated even if motivated by poor judgment rather than actual bias, because the effect on public perception is the same. I also would hold that the Board has sustained its burden of proving that Respondent’s racist conduct is of a nature which brings the judiciary into disrepute, for purposes of Pa. Const. Art. V, § 18(d)(1). In In re Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc.1996), we held that the Board must “make a persuasive showing that (1) the judicial officer has engaged in conduct which is so extreme that (2) it has resulted in bringing the judicial office into disrepute.” Id. at 1238 . As noted in In re Cicchetti, 697 A.2d 297, 312 (Pa.Ct.Jud.Disc.1997), the question of whether certain conduct constitutes a violation of this provision must be determined on a case-by-case basis. I conclude that Respondent’s statement was not only sufficient to bring his own reputation into disrepute, but also so egregious as to bring the judiciary as a whole into disrepute. Smith, supra, at 1239 . The public, upon hearing that a member of the judiciary had made such racist statements, might believe that such opinions are not isolated among members of the judiciary. Respondent’s conduct has placed a pall over other judicial officers and the system as a whole, drawing in question the judiciary’s impartiality towards African-Americans. In Reitmeyer v. Unemployment Compensation Board of Review, 145 Pa.Commw. 177, 602 A.2d 505 (1992) (Byer, J.), the Commonwealth Court held that a teacher who circulated solely to other faculty members two copies of a so-called “joke sheet” which contained items of a racist nature had committed willful misconduct requiring the denial of unemployment benefits. In so holding, the Commonwealth Court rejected the teacher’s defense that he was unaware of the racist nature of some of the alleged “jokes,” because he had read only the first two or three before distributing two copies of the “joke sheet.” Even assuming that to be the case, the Commonwealth Court held that the act of a teacher in distributing the racist “joke sheet” to other faculty members in a public school “was a horrible example for his students” and fell short of the school district’s justifiable expectation that its teachers would “conduct themselves in such a way as to command the respect and goodwill of the community.” Id. at 181, 602 A.2d at 507 . Similarly, Respondent’s conduct in this case falls short of the justifiable expectation of the public that members of the judiciary will not act in any manner which appears to be inconsistent with the requirement that justice be free of racial bias. In Reitmeyer , I wrote for the court, “[rjacism is an evil which a decent society cannot tolerate.” Id. at 182, 602 A.2d at 508 . Because a decent society should not tolerate even the appearance of racism on the part of a judicial officer, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732676. Public record. Not legal advice.