In Re Zoller

HORGOS, J.,

dissenting with respect to Count 3 in which RUSSO, President Judge, joins.

While I join in the opinion of the majority of the Court respecting Counts 1 and 2, I dissent from the conclusion of the majority respecting Count 3 for I do not believe the Board has established that Respondent’s conduct is such that brings the judicial office into disrepute.

Count 3 of the Board’s Complaint charges Respondent with conduct which brings the judicial office into disrepute in violation of Article V, § 18(d)(1) of the Pennsylvania Constitution. It is stipulated *40 that Respondent made “some or all” of the comments set out in Finding of Fact No. 9. I agree with the finding of the majority that this is the equivalent of an agreement that Respondent made “all” of the said comments.

Section 18(d)(1) provides for discipline for “conduct which brings the judicial office into disrepute whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law.” The determination of whether a judicial officer’s conduct brings the judicial office into disrepute is a factual one that is decided on a case-by-case basis. In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc.1997), aff'd, 560 Pa. 183 , 743 A.2d 431 (2000). To sustain such a charge, the Board must show 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. In re Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc.1996).

In Cicchetti, supra, the Court of Judicial Discipline found and the Pennsylvania Supreme Court affirmed that the judge’s pattern of sexual advances to a subordinate was “so persistent, so coercive, and so extreme” that disrepute was brought upon the judicial office itself. Id. 560 Pa. at 206 , 743 A.2d at 444 . Similarly in In re Strode, 727 A.2d 653 (Pa.Ct.Jud.Disc.1998), this Court found that during an 18 month period, a district justice personally used cash, checks and money orders which were public funds received in her office. The Court found that this conduct brought the office into disrepute.

The seriousness of Respondent’s conduct cannot be minimized and Respondent has expressed his regret. It has not been alleged, however, that Respondent’s use of inappropriate language has ever been a course of conduct or even occurred at any other time during his term of office.

As the Court of Judicial Discipline observed in In re Smith, supra:

Even if a judicial officer’s actions could reasonably result in a lessening of respect for that judge, it cannot be assumed that the same actions would necessarily bring the judicial office itself into disrepute. In other words, one [some] might say “Judge Smith has failed to decide his cases, and therefore he has lost our respect.” Such a finding would not sustain the Board’s burden, for the Board must show that the disrespect arising from Judge Smith’s actions extends to all judges. In other words, that the wrongful actions of a judicial officer are capable of bringing the judicial office into disrepute is only the first step of the inquiry. The second step is that, in fact, universal disrepute resulted.

In re Smith, id. at 1239.

Here, the Deputy Sheriff who was present during the relevant sequence of events testified that she heard Respondent utter a profanity once and it did not offend her (N.T. 91, 93). There was not sufficient evidence to establish that anyone except Respondent, the two Constables, the Deputy Sheriff and the Defendant were present. There were no members of the public present.

The instant matter fits squarely within the example used by this Court in Smith, id. It is a case in which Constables Hugus and Roach might well say: “Respondent was angry and impolite and used vulgar language; he has lost our respect.” As the Court pointed out in Smith, id., such a finding would not sustain the Board’s burden because the Board must show that the disrespect arising from the Respondent’s conduct extends to all judicial officers.

The Court of Judicial Discipline has specifically stated:

*41 In order for the Board to establish a violation of this provision [Article V, § 18(d)(1)] of the Constitution, the Board must demonstrate a specific act or series of acts, by a judge, which result in a decline of public esteem for the judicial office.

It cannot be presumed that a violation of any other provision, constitutional, canonical, or criminal automatically lowers public acceptance of the authority of the judicial office.

In re Smith, id. at 1238.

Thus, while this Court finds that in this isolated incident, the Respondent was not patient, dignified and courteous to the two Constables with whom he dealt in his official capacity, there is no presumption that the Respondent’s conduct brought the judicial office into disrepute. Our finding that the Respondent’s violation of Rule 4C of the Rules Governing Standards of Conduct of District Justices does not in any way lead to a presumption of a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.

There is insufficient evidence on this record to support the conclusion that the Respondent engaged in conduct which brings the judicial office into disrepute in violation of the Pennsylvania Constitution, Article V, § 18(d)(1).

Accordingly, I would dismiss Count 3 of the Board’s Complaint.

RUSSO, President Judge, joins in this opinion.

ORDER

PER CURIAM:

AND NOW, this 24th day of January, 2002, after the Sanction Hearing conducted on January 23, 2002, it is ORDERED that Respondent remain under appropriate medical supervision and it is further ORDERED that this matter be and it hereby is concluded and ended.