Appendix — In re Larsen

mem Oa US]

92-1833 MAY 13 1993

GAFCE OF THE CLERK

NO.

In The

Supreme Court of the Gnited States

October Term, 1992

IN THE MATTER OF THE HONORABLE

ROLF LARSEN, JUSTICE OF THE

PENNSYLVANIA SUPREME COURT

HONORABLE ROLF LARSEN, PETITIONER

APPENDIX |

PAGES 1 —- 183

Rolf Larsen, Pro Se

2800 Grant Building

Pittsburgh, Pennsylvania 15219

(412) 565-3000

ig

ies.

TABLE OF CONTENTS

for Appendix |

Page

Per Curiam Order of Pennsylvania Supreme

Court of January 22, 1993 .................... 1

Dissenting Statement, Papadakos, J. ............. 4

Per Curiam Order of Pennsylvania Supreme Court

of October 14, 1992 with the Report of the JIRB

to the Pennsylvania Supreme Court, PART Il,

attached as Appendix !....................... 7

RR 5 FS Pr er 72

Report of the JIRB to the Supreme Court of

Pe ee Wien aw aes saeu ses 74

Dissenting and Joining Report, Munley, J.......... 104

Application for Disqualification of All Members

of the Judicial Inquiry and Review Board ........ 151

Application for Writ of Prohibition and for

Ewtraordinary Pieliet. ow ccc cee 162

Order of August 12, 1988 denying Application for

Writ of Prohibition and for Extraordinary Relief ... 181

In The

Supreme Court of Pennsploania

IN THE MATTER OF

THE HONORABLE ROLF LARSEN,

Associate Justice

No. 155

Judicial Inquiry and Review Board Docket

Application for Reargument

ORDER

PER CURIAM

AND NOW, this 22nd day of January, 1993, it appearing that

the Application for Reargument presents no compelling rea-

sons why reargument should be granted, it is hereby

ORDERED that the Application for Reargument is DENIED.

However, we note one claim in the Application for Reargu-

ment that necessitates clarification of the footnote in our Order

of October 14, 1992. In that footnote, we wrote, ‘‘it is the Report

and Recommendation of Judges James, Juliante [sic], Kelly,

and Montemuro, whose participation was not challenged, that

we have accepted, following our independent review of the rec-

ord.’’' (Emphasis added.) The Respondent asserts that he cid

challenge the participation of Judge (now Justice) Montemuro,

1 There is no basis for the claim in the Application for Reargument that

we failed to conduct a de novo review.

and therefore it was necessary to address his argument relat-

ing to the makeup of the Board.

Our purpose in drafting the footnote was to avoid the con-

fusion that seemed inevitable were we to restate and refute

the Respondent’s labyrinthine arguments as to who could and

could not properly participate as a member of the Board at

the various stages of the proceedings. We acknowledge, how-

ever, that in attempting to be concise and avoid confusion, we

may have inadvertently caused some confusion.

In his original argument to the Court, the Respondent con-

tended that certain Board members should not have partici-

pated at various stages because their terms had expired. This

argument in large measure overlapped his arguments that cer-

tain Board members should not have participated because they

should have recused themselves, and his argument that the

entire Board should have been disqualified from participating.

Our footnote did not adequately distinguish between these

arguments.

The focus of our statement in the footnote was the recusal

motions filed by the Respondent challenging the participation

of individual members of the Board.? As there had been no

petition for recusal directed specifically to Judge Montemuro,?

he was included as one “whose participation was not

challenged.”’

The Respondent did, however, make a claim that Judge

Montemuro should not have participated in the Report and

Recommendation to the Court on July 17, 1991, since his term

had expired on May 19, 1991. This argument we dismissed

out of hand, as contrary to the terms of Pa. Const., Art. V,

2 itis noted that each of these motions was denied by the challenged Board

member, and we find no abuse of discretion. See generally, Reilly by Reilly

v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d

1291 (1985).

3 To be absolutely precise, we recognized that Judge Montemuro was a

member of the Board at the time the Respondent petitioned for the recusa!

of the entire Board. The petition, however, contained no grounds for recusal

directed specifically to Judge Montemuro. Rather, the Respondent made

the untenable argument that no member of the Board would be able to fairly

judge the credibility of fellow Board member Judge Eunice Ross, who had

been excluded from participation in this matter when it became apparent

that she would be a witness in the proceedings.

Sec. 18(b): ‘‘The members shall serve for terms of four years,

provided that a member, rather than his successor, shall con-

tinue to participate in any hearing in progress at the end of his

term.’’ (Emphasis added.) Since the purpose of the hearing

is to determine whether the evidence warrants a recommen-

dation of discipline, it would be illogical to conclude that a mem-

ber is authorized to participate in hearing evidence beyond the

expiration of his term but not authorized to participate in the

recommendation. The Respondent’s approach offers no

advantage to the process while inviting delay and inefficiency.

Because we dismissed this argument as well as the argument

concerning recusal of the entire Board as specious, we failed

to appreciate the manner in which our abbreviated statement

might be misunderstood.

Mr. Chief Justice Nix did not participate in the considera-

tion or decision of this case.

Mr. Justice Larsen did not participate in the consideration

or decision of this case.

Mr. Justice Flaherty did not participate in the consideration

or decision of this case.

Mr. Justice Montemuro did not participate in the considera-

tion or decision of this case.

Mr. Justice Papadakos would remand.

In The

Supreme Court of Pennsplbania

Eastern District

IN THE MATTER OF THE

HONORABLE ROLF LARSEN, ASSOCIATE (SIC) JUSTICE

PENNSYLVANIA SUPREME COURT

No. 155

J.1.R.B. Docket

ARGUED: May 7, 1992

DISSENTING STATEMENT

MR. JUSTICE PAPADAKOS

| most reluctantly dissent from the action taken by my col-

leagues in adopting the recommendation of the Judicial Inquiry

and Review Board. | do not reach the merits, as my colleagues

have, and | do not question the correctness of the decision

on the merits as may appear in the record filed with us by the

Judicial Inquiry and Review Board.

Rather, my deep concern arises from the fact that | believe

that the entire proceedings have been tainted with procedural

infractions of the rules and the substitution of members of the

Board participating in successive hearings.

| believe that it was error for the Board to file with us a rec-

ord on charges they found to be unsubstantiated and for which

the Board made no recommendation. | believe this to be a

4

violation of the constitutional mandate of confidentiality for all

matters in which no recommendation of sanction is made to

the Supreme Court.

The record should have been filed with us which included

only the charge which the Board found to have been substan-

tiated and for which the recommendation of public censure

was made.

My objections to the composition of the Board which con-

cluded the proceedings against Mr. Justice Larsen and my

views as to the proper procedures to have been followed have

been fully articulated in my Dissenting Opinion entered in

Larsen v. Kaufmann, et al, 525 Pa. 278, 579 A.2d 1302 (1990),

and need not be restated here.

However, in response to my colleagues’ assertion that the

participation of the challenged members did not change the

outcome, | must point out that this conclusion lies in the realm

of conjecture. The recommendation presented to us is surely

the product of a compromise between four who would have

opted for a more severe sanction and four who settled for much

less. Had the four who settled for much less not met the seri-

ous opposition of the other four, would they have carried the

day for complete exoneration? Either the image of the judici-

ary is being severely damaged or the rights of the Respon-

dent have been trampled upon. Under the present

circumstances, we cannot know.

Suffice it to say that, in my view, the adding of new charges

to proceedings under way, the participation in new hearings

by Board members whose terms had expired, and the refusal

of this Court to resolve the constitutional issues raised by Mr.

Justice Larsen, all of which were held as interlocutory by a

divided court on the premise that we can cure any defect upon

the filing of a record and recommendation, call for a remand

to a properly constituted Judicial Inquiry and Review Board

which has jurisdiction to hear and resolve the charge under-

lying the recommendation of public censure.

The errors alleged by Mr. Justice Larsen and the violations

of constitutional rights which he claims in his various petitions

to this Court which were held to be interlocutory by a divided

Court remain unresolved. The Board cannot resolve these

issues as a trial court may. Its only duty is to make a recommen-

dation to our Court as to a proper sanction that may be

imposed. Only this Court can now answer those issues.

| realize that this has been a long and trying experience for

all parties involved, including this Court which has been put

to the unenvious task of judging one of its own on charges

of judicial misconduct. The resolution wrought by my col-

leagues may bring to a close, once and for all, this sad epi-

sode and it may be the wise thing to do. However, | feel that

the constitutional infirmities | find to have been committed by

the Board can only be exonerated by remanding for new hear-

ings on the charge submitted to us.

| therefore dissent and would order a remand.

in The

Supreme Court of Pennsplbania

Eastern District

IN THE MATTER OF THE

THE HONORABLE ROLF LARSEN,

Associate Justice

J.1.R.B. Docket No. 155

ARGUED: May 7, 1992

ORDER

PER CURIAM

AND NOW, this 14th day of October, 1992, after review of

the Record and due consideration of the Briefs and

Arguments’, the Court accepts the Report of the Judicial

1 The Respondent has set out a number of arguments sounding in due

process, relating to the participation of certain persons in the proceedings

and in the Report to the Court. It is apparent, however, that even if those

whose participation was challenged had not participated, the Board would

have submitted a Report and Recommendation of discipline as to Charge |

indeed, it is the Report and Recommendation of Judges James, Juliante,

Kelly, and Montemuro, whose participation was not challenged, that we have

accepted, following our independent review of the record. Thus, the con-

cem that the challenged members might provide the votes necessary to make

a recommendation of discipline that otherwise would not be made, and make

public a record that would otherwise be required to be kept confidential,

did not materialize. Under the circumstances, we do not address these argu

ments, as any decision on them would not affect the resolution of the mat-

ter before us.

_~

Inquiry and Review Board submitted by Judge Joseph M.

James, Judge Jess Juliante, Judge John T.J. Kelly, Jr., and

Judge Frank J. Montemuro, a copy of which is attached as

Appendix |, and the Recommendation contained therein that

the Respondent receive a public reprimand, based upon the

finding that, notwithstanding the iack of improper motive, the

Respondent engaged in an ex parte communication prohibited

by Canon 2 of the Code of Judicial Conduct by providing infor-

mation to a common pleas court judge relating to a matter that

was pending before her. Following entry of this Order, an admo-

nition shall be delivered to the Respondent upon exhaustion

of any further appeal, and the same shall be dockeied and filed

in the public record of this matter.

Mr. Chief Justice Nix did not participate in the considera-

tion or decision of this matter.

Mr. Justice Larsen did not participate in the consideration

or decision of this matter.

Mr. Justice Flaherty did not participate in the consideration

or decision of this matter.

Mr. Justice McDermott did not participate in the decision

of this matter.

Mr. Justice Papadakos files a dissenting statement.

aed -

Appendix 1

IN THE MATTER OF THE HONORABLE

ROLF LARSEN, ASSOCIATE JUSTICE,

PENNSYLVANIA SUPREME COURT

BEFORE THE JUDICIAL INQUIRY

AND REVIEW BOARD

No. 140 JIRB Dkt. 1987

(Complaint Dkt. No. 87-156)

REPORT OF THE JIRB

TO THE SUPREME COURT OF PENNSYLVANIA

Report of:

Judge Joseph M. James

Judge Jess Juiliante

Judge John T.J. Kelly, Jr.

Judge Frank J. Montemuro

PART II

IN THE MATTER OF THE HONORABLE

ROLF LARSEN, ASSOCIATE JUSTICE,

PENNSYLVANIA SUPREME COURT

BEFORE THE JUDICIAL INQUIRY

AND REVIEW BOARD

No. 140 JIRB Dkt. 1987

(Complaint Dkt. No. 87-156)

REPORT OF THE JIRB

TO THE SUPREME COURT OF PENNSYLVANIA

The instant matter involves five aliegations of misconduct

levelled against Justice Rolf Larsen of the Pennsylvania

Supreme Court. The relevant procedural history may be

accurately summarized as follows.

in September of 1987, Judge Eunice Ross of the Allegheny

County Court of Common Pleas made a formal complaint

against Justice Larsen. Following preliminary investigation

under JIRB Rule 1, notice of formal charges was issued to Jus-

tice Larsen setting forth two allegations of misconduct. The

first charge asserted violations of Pa.Const. Art V, sec. 17(b),

and Canons 1, 2, and 3(A) of the Pa.Code of Judicial Conduct

with regard to an allegedly improper ex parte communication

by Justice Larsen to Judge Eunice Ross relating to a case

pending before Judge Ross at the time of the alleged com-

munication. The second charge asserted violations of

Pa.Const. Art. V. sec. 17(b), and Canons 1 and 2 of the

Pa.Code of Judicial Conduct with regard to his alleged pur-

suit of an appeal from the grant of variances to a developer

for the purpose of coercing an inordinate settlement from the

developer, and not with the purpose of enforcing the zoning

laws. Justice Larsen has denied both charges.

Proceedings before the JIRB followed with various motions

disposed and hearings conducted. Cn October 3, 1988,

Amended Charges were issued alleging three additional

charges of misconduct.

The first added charge, Charge lil, asserted a violation of

Pa.Const, Art V, sec. 17(b) and Canons 1, 2, and 3(A)(4) of

the Pa. Code of Judicial Conduct with regard to an alleged

improper ex parte communication by Justice Larsen to Judge

Emil Narick of the Allegheny Court of Common Pleas concern-

ing a case pending before Judge Narick at the time of the

alleged communication. Charge IV alleged an identical viola-

tion with respect to a separate ex parte communication by

10

Sk tag ee ie

Justice Larsen to Judge Narick concerning a different case

pending before Judge Narick when the alleged communica-

tion occurred. The last added charge, Charge V, alleged vio-

lation of Pa.Const. Art V, sec. 17(b) and Canons 1, 2, and 3A(4)

by attempting to influence Judge Narick’s assignment of then

pending cases to particular judges.

On October 11, 1988, by unanimous vote of the six mem-

bers then sitting, it was further decided that the added charges

would be redesignated as having been filed pursuant to JIRB

Rule 2, rather than JIRB Rule 8 as originally indicated. All five

charges were to be heard ab initio by a six member panel. The

full Board as then composed had been reduced from nine

members to six members as the result of the recusal of Judge

James E. Rowley and Judge Ross, and the resignation of

Judge Alex Bonavitacola.

Proceedings were commenced, but then were continued

until after January 1, 1989. JIRB members former Justice Bruce

W. Kaufman and Mr. James H. Higgins continued to partici-

pate in this matter following the expiration of their terms,

despite Justice Larsen’s objection to this procedure. See

Pa.Const. Art. V, sec. 18(b).

New members, Judge John T.J. Kelly, Jr., Judge Charles

L. Durham and Judge Jess S. Jiuliante were later appointed

to the JIRB, and added to the panel. Thus, the panel eventu-

ally presiding in this matter included a full complement of nine

members. New proceedings including motions, discovery, and

hearings followed. From March 15, 1989 forward, all proceed-

ings were conducted before a full nine member panel. The final

hearing at which new evidence was presented in this matter

was conducted on June 10, 1989.

Effective April 11, 1990, Board Member Judge Durham

resigned. In April 1990, three Rule 9 Reports were issued by

remaining Board members.

A short time thereafter, proceedings were stayed pending

disposition of a special petition for an order seeking a perma-

nent injunction barring this Board from proceeding based upon

alleged procedural irregularities/recusal grounds. Relief was

denied by an evenly divided Court. Larsen v. Kaufman, __

Pa. . A.2d ____ (1991)(No. 152 JIFRB).

Judge Joseph M. James became a member of the Board

11

and took Judge Durham’s place in these proceedings. All tran-

scripts, exhibits and related documents were provided for

Judge James’ review and analysis, including all three Rule 9

Reports.

Following removal of the Supreme Court’s stay, this Board

conducted the required Rule 11 Hearing on May 21, 1991. We

now. issue our Final Report and Recommendation to the

Supreme Court.

The record in this case is voluminous. Twenty-one Board

Hearings were conducted at which forty witnesses gave tes-

timony. Twenty-four volumes of transcripts were produced con-

taining three thousand five hundred and fourteen pages of

testimony. The Board submitted sixty-four exhibits; Justice Lar-

sen submitted another fifty-seven exhibits. The motions and

pleadings are likewise numerous, intricate, and voluminous.

This report will proceed in the following manner. First, we

will offer introductory remarks regarding the JIRB’s fact-finding

and credibility determining functions, along with some guid-

ing principles we applied in evaluating the evidence presented.

Second, we will review character evidence offered on Justice

Larsen’s behalf relevant to all five charges. We will then review

the evidence, make findings, and discuss charges one and

two separately and in turn. We dispose of charges three, four,

and five in one brief section. Finally, we discuss permissible

sanctions and our recommendation to the Supreme Court in

this case.

|. JIRB’S ADVISORY FUNCTION

The Judicial Inquiry and Review Board is a constitutionally

created agency, judicial in character, charged with the impor-

tant function of receiving, investigating, and making discipli-

nary recommendations to the Supreme Court regarding formal

and informal complaints of ethical misconduct by members of

the Pennsylvania judiciary. See Pa.Const. Art V, sec. 18; 42

Pa.C.S.A. §§3301 et seg.; see also Matter of Chiovero, 524

Pa. 181, 184, 570 A.2d 57, 58 (1990)\(per Papadakos; McDer-

mott and Zappala, JJ., join); Matter of XYP, 523 Pa. 411, 416,

567 A.2d 1036, 1038 (1989); Office of Disciplinary Counsel v.

Surrick, 521 Pa. 264, 267-68, 555 A.2d 883, 885 (1989); First

12

Amendment Coalition v. JIRB, 501 Pa. 129, ____, 460 A.2d 722,

723-24 (1983). Unless and until a majority of the JIRB finds

good cause to recommend disciplinary action by the Supreme

Court, all proceedings must remain confidential. Pa.Const. Art

V, sec. 18(h); 42 Pa.C.S.A. §3334; JIRB Rule 20; see also Mat-

ter of Chiovero, supra, 570 A.2d at 61; id., 570 A.2d at 67 (Nix,

C.J.,. dissenting, Flaherty, J., joins); /n re Subpoena of JIRB,

512 Pa. 496, 517 A.2d 949 (1986); Application of Surrick, 504

Pa. 25, 470 A.2d 447 (1983); First Amendment Coalition v. JIRB,

supra.

Any recommendation of disciplinary action made to the

Supreme Court must be accompanied by a certified record of

all proceedings on those charges before the JIRB, and a report

containing findings of fact and conclusions of law regarding

those charges in support of the JIRB’s recommendation. JIRB

Rule 16. It is customary for any concurring or dissenting mem-

bers of the JIRB to forward with the report of the JIRB majority

-a similar minority report explaining the grounds for concurrence

or dissent. See Matter of Sylvester, 527 Pa. 300, 303 & n.3,

555 A.2d 1202, 1203 & n. 3 (1989); Matter of Braig, 520 Pa.

409, 413 & n.3, 554 A.2d 493, 495 n.3 (1989); Matter of Cun-

ningham, 517 Pa. 417, 423 & n.2, 538 A.2d 473, 476 n.2 (1988);

Matter of Dalessandro, 483 Pa. 431, 436, 397 A.2d 743, 745

(1979\plurality, per curiam, Manderino and Larsen, JJ., join);

Matter of Johnson, 483 Pa. 227, 230, 395 A.2d 1319, 320

(1978).

A JIRB report, whether a majority or minority report, is merely

advisory and carries only such weight as our Supreme Court

shall find its analysis compels during our Supreme Court’s own

de novo review of any judicial disciplinary matter properly

brought before it. See Pa.Const. Art. V, sec. (h). In the past,

our Supreme Court has exercised its authority to modify as

well as to reject outright, findings, conciusions, and discipli-

nary recommendations. See Matter of Chiovero, supra; Mat-

ter of Sylvester, supra; Matter of Braig, supra; Matter of

Cunningham, supra; Matter of Glancy (1), 515 Pa. 201, 527 A.2d

997 (1987); Matter of Dalessandro, supra (per curiam; Man-

derino and Larsen, JJ., join); Matter of Johnson, supra.

In making findings and drawing conclusions, we keep fore-

most in mind the burden of proof in disciplinary proceedings.

13

Before any disciplinary action may be taken by our Supreme

Court, they must first find that an ethical violation has been

established by clear and convincing evidence. See Matter of

Chiovero, supra, 570 A.2d at 60; Matter of Sylvester, supra;

Matter of Braig, supra; JIRB v. Snyder, 514 Pa. 142, 523 A.2d

294 (1987); see also Matter of Delassandro, supra, 397 A.2d

at 751 (“‘it was by no means clear and convincing that the

respondent was intentionally exploiting his judicial position’’);

Matter of Johnson, supra, 395 A.2d at 1325 (‘“‘The evidence

concerning respondent’s manner during the above proceed-

ings was sharply in conflict. . . . The evidence in this regard

is not clear and convincing and is insufficient to sustain the

imposition of an official reprimand.’’). Our Supreme Court has

repeatedly explained that:

[t]he standard of clear and convincing evidence

means testimony that is so clear, direct, weighty, and

convincing as to enable the trier of fact to come to

a Clear conviction, without hesitancy, of the truth of

the precise facts in issue.

Matter of Chiovero, supra, 570 A.2d at 60; Matter of Sylvester,

supra, 555 A.2d at 1203-04; Matter of Braig, supra, 554 A.2d

at 495; JIRB v. Snyder, supra, 523 A.2d at 299.

In order for a witness’ testimony or other evidence to sup-

' port a finding of clear and convincing evidence the witness

must be credible and the evidence offered must be based upon

distinct personal knowledge of the relevant facts, undecayed

by time and untainted by the corrupting influences of bias or

suggestion. See generally LaRocca Trust, 411 Pa. 633, 192

A.2d 409 (1963)(testimony was evasive and evinced both bias

and a memory decayed by time); Carlin v. Pa. Power & Light

Co., 363 Pa. 405, 70 A.2d 345 (1950)(evidence lacked state-

ments of personal knowledge of critical facts, was neither clear

nor precise, and one witness had obvious bias); Alliquipa Nat’!

Bank v. Harvey, 340 Pa. 223, 16 A.2d 409 (1940)(evidence was

contradictory, biased, and hardly credible, inconsistencies

between statements and conduct noted); Matter of Jackson,

302 Pa.Super. 369, 448 A.2d 1087 (1982) (witnesses lacked

personal knowledge of relevant facts).

14

The effects of conflicts in the evidence or corroboration of

particular evidence will vary depending upon the credibility of

the individuals involved, the degree of conflict or corrobora-

tion, and the importance of the point with respect to which the

conflict or corroboration occurs. The existence of a conflict in

the evidence with regard to a material fact, by itself, may pre-

clude a finding that a charge has been sustained by clear and

convincing evidence. See e.g. Matter of Johnson, supra. On

the other hand, there is no mechanistic corroboration require-

ment; rather, a charge could be sustained on the basis of the

uncorroborated testimony of a single credible witness in an

appropriate case. Compare In re McDonough, 296 N.W.2d 648,

692 (Minn. 1980) (“‘no mechanistic corroboration requirement

is necessary . . . in fact, depending on its source, uncorrobo-

rated evidence may be more reliable than that remotely cor-

roborated by a dubious source), and /n re Boyd, 308 So.2d

13, 21 (Fla. 1975) (“evidence to sustain a charge of unprofes-

sional conduct against a member of the bar, where in his tes-

timony . . . he has fully and completely denied the asserted

wrongful act, must be clear and convincing, and that degree

of evidence does not flow from testimony of one witness, unless

such witness is corroborated to some extent by either facts

or circumstances’’).'

Likewise, in assessing the evidence, due consideration must

be given to any character evidence offered on behalf of the

respondent. See Matter of Sylvester, supra. The weight to be

given character evidence will vary depending upon the circum-

stances. Compare Matter of Sylvester, supra; JIRB v. Snyder,

supra, 523 A.2d at 304 (Papadakos, J., concurring and dis-

senting); and In re Dandridge, 462 Pa. 67, 70, 337 A.2d 885,

886 (1975). When there is slender evidence to sustain a charge

or when the evidence is ambiguous, character evidence may

dispel suspicions of impropriety a jaundiced eye might other-

wise perceive; on the other hand, when proofs are credible,

multiple, and incontrovertible, character evidence will be of

little avail except in mitigation of the penalty. Compare Matter

of Sylvester, supra; JIRB v. Snyder, supra; and In re Dandridge,

1 We note that Boyd involved allegations of misconduct against a Florida

Supreme Court judge regarding ex parte communications.

15

supra.

In assessing the credibility of witnesses and the weight to

be accorded their testimony, the need to identify and discount

for the deleterious effects of personal animus and/or bias is

obvious. Less clear, but equally, if not more important, is our

responsibility to identify and discount for the effects of inno-

cent ‘‘fallacies of testimony”’ which infect and distort the tes-

timony of even the most forthright and well-intended of

witnesses.

The venerable trial advocate Francis Wellman cogently

observed long ago:

No one can frequent our courts of justice for any

length of time without finding himself aghast at the

daily spectacle presented by seemingly honest and

intelligent men and women who array themselves

upon opposite sides of a case and testify under oath

to what appear: to be absolutely contradictory.

Wellman, The Art of Cross-Examination, at 139-40 (Rev.ed

1904).

We have reached various findings of fact and conclusions

of law which implicitly or explicitly reject certain testimony as

not credible. In doing so, we emphasize the numerous sources

of innocent fallacies of testimony. See generally Wellman,

supra, at 139-53. Our rejection of an individual’s testimony in

whole or in part is not intended to imply perjurious or corrupt

motivation. To the contrary, the witnesses in these proceed-

ings appeared generally forthright and sincere despite the var-

ious conflicts in their recollections of the relevant events.

We note that we are well aware of the potential for manipu-

2 In Shilling v. State Com’n on Judicial Conduct, 415 N.E. 2d 900, (NY 1980),

that court explained with regard to evidence of a judge’s good character that:

character evidence does not exist ina vacuum, and its value, influence,

or the weight to be accorded it depends in great part upon the other

evidence in the case. . . If the evidence against a [respondent] is

cumulative and reliable, the influence of contrary evidence of good

character is likely to be slight. Under other circumstances, such evi-

dence may be so good, if believed, as to create a reasonable doubt

where without it none would exist.

415 N.E. 2d at 902. We agree.

16

lation of the JIRB disciplinary process for personal and/or polit-

ical motives. Cf. Matter of Chiovero, supra, 570 A.2d at 61. All

proceedings before the JIRB are privileged from liability for

defamation, even if allegations are false and made with actual

malice. Pa.Const. Art V, sec. 17(h); 42 Pa.C.S.A. §3332(c);

JIRB Rule 21. While statements regarding JIRB proceedings

or the substance of allegations made outside JIRB proceed-

ings are not covered by that privilege, sanctions for violations

of confidentiality and/or liability for defamation are still quite

limited. See First Amendment Coalition v. JIRB, 784 F.2d 467

(3rd Cir. 1986); Office of Disciplinary Counsel v. Surrick, supra;

Larsen v. Philadelphia Newspapers, 375 Pa.Super. 66, 543 A.2d

883 (1988); cf. Matter of Dalessandro, 483 Pa. 431, 465, 397

A.2d 743, 760 (1979). Consequently, there is a very real risk

that JIRB proceedings may be misused and manipulated for

political and/or personal motives entirely unrelated to the main-

tenance of a just and ethical judiciary. See First Amendment

Coalition v. JIRB, 784 F.2d 467, 475-77 (3rd Cir. 1986\(collecting

authorities); cf. Matter of Chiovero, supra, 570 A.2d at 67 (Nix,

C.J.; dissenting, Flaherty, J., joins).

We recognize too, that it is our solemn responsibility to

ensure that the authority of the JIRB is exercised carefully so

as to promote the independence as well as the integrity of our

judiciary. Matter of Chiovero, supra, 570 A.2d at 67 (Nix, C.J.,

dissenting, Flaherty, J., joins); cf. Matter of XYP, supra. We

have kept in mind Justice Hugo Black’s ominous warning that

unless discipline of the judiciary is carefully controlled, “‘the

hope fu; an independent judiciary will prove to have been no

more than an evanescent dream.”’ Chandler v. Judicial Coun-

cil, 398 U.S. 74, 143, 90 S.Ct. 1648, 1683, 26 L.Ed.2d 100,

141 (1970)(Black, J., dissenting).

The burden of proof in these proceedings is proof by clear

and convincing evidence. We therefore restrict our conclusions

to whether the alleged misconduct was established by clear

and convincing evidence. \n this context, the concepts of proof

by probable cause, preponderance, reasonable suspicion or

mere suspicion are simply not relevant. We are neither author-

ized nor inclined to offer any opinion as to the degree by which

3 Cf. Pelagatti v. Cohen, 370 Pa.Super. 422, 437-38, 536 A.2d 1337,

1344-45 (1987).

17

an allegation may have failed of insufficient proof, nor do we

offer any opinion as to the ethics of the conduct of the parties

beyond that required to determine the specific charges of mis-

conduct presented through proper procedures for review. Cf.

Matter of XYP, supra. The provisions of the Code of Judicial

Conduct, rather than our personal views of propriety, have been

our measure in this matter. Cf. Matter of Chiovero, supra, 570

A.2d at 60-61.

Finally, we note that though Justice Larsen has raised

numerous due process challenges to the manner in which

these proceedings were conducted, as well as to the refusal

of certain members of the Board to recuse themselves,* we

offer no opinion on these matters. Our reports to the Supreme

Court are soiely advisory, we are confident that the Supreme

Court will consider Justice Larsen’s various allegations in as-

sessing the weight to be given the reports submitted, and take

such other actions as it deems appropriate. Cf. Matter of

Chiovero, supra, 570 A.2d at 61; Matter of Dalessandro, supra,

397 A.2d at 760 (per curiam; Manderino and Larsen, JJ. join).

ll. CHARACTER EVIDENCE REGARDING JUSTICE LARSEN

Because the character evidence offered on behalf of Jus-

tice Larsen is relevant to our analysis of all five charges, we

consider it first and separately from the evidence and findings

pertaining separately and solely to each charge raised. Our

findings in this regard should be considered to be incorporated

by this reference into the discussion of each of the separate

charges which follow.

4 With regard to the varied recusal motions we make the following clarifi-

cation. There are, as yet, no rules promulgated regarding the manner in

which motions to recuse JIRB members are to be handled. In absence of

clear authority, the Board is doubtful of its authority to pass on such motions

as a Board. Consequently, the Board has followed the general rule of leav-

ing recusal motions to the discretion of the Board member against whom

the motion is addressed. Cf. Matter of Chiovero, supra, 570 A.2d at 60. Good-

heart v. Casey, 521 Pa. 316, 565 A.2d 757 (1989); Reilly by Reilly v. SEPTA,

507 Pa. 204, 489 A.2d 1291 (1985). Orders entered denying such motions

have reflected the decision of the individual member whose recusal was

sought; the full board has taken no position on the merits of any of the

petitions.

18

|

1. Upon graduation from Penn Township (now Penn Hills)

High School in 1953, Justice Larsen served on active duty in

the United States Army until his honorable discharge in 1956.

(Larsen, TR at 2506-07).

2. Justice Larsen earned his law degree from Dickinson

School of Law and was admitted to practice in Pennsylvania

Courts in 1960. (Larsen, TR at 2506-07).

3. Justice Larsen was a sole-practioner for 13 years with

a concentration in personal injury and domestic relations mat-

ters. (Larsen, TR at 2633).

4. Justice Larsen was elected Judge of the Allegheny

County Court of Common Pleas in November 1973. He was

formally commissioned and took his oath of office in January

1974. (Larsen, TR at 2507).

5. Justice Larsen was elected Associate Justice of the Penn-

sylvania Supreme Court in November 1977. He was formally

commissioned and took his oath of office in January 1978. (Lar-

sen, TR at 2507).

6. From 1964 to 1980, Justice Larsen received, periodically,

highly laudatory coverage by the press; however, from 1980

to the present, coverage in major newspapers such as the Pitts-

burgh Post Gazette and the Philadelphia Inquirer has been

almost uniformly negative. Justice Larsen’s suit for defama-

tion and related claims against those papers remains pend-

ing. (EX R-24; Larsen v. Philadelphia Newspapers, 375

Pa.Super. 66, 543 A.2d 1181 (1988)).

7. Despite considerable adverse publicity concerning the

substance of charges | and Il of these proceeding and adverse

publicity relating to charges dismissed by the JIRB in previ-

ous proceedings, Pennsylvanians voted to retain Justice Lar-

sen for another 10-year term in November 1987. (Larsen, TR

at 2507; Ross, TR at 823; Resp. Response to LOI, 10/22/87;

EX B-53; EX R-2; Grochot & Gazarik, “‘Land Sale Scrutinized:

FBI Looking Into Zdrale Bankruptcy,’ Sunday Tribune Review,

at A-1, A-10 (April 19, 1987).

8. Testimony of twenty-nine distinguished and wholly credi-

ble citizens of this Commonwealth including businessmen, doc-

tors, a member of the clergy, County Commissioners, labor

officials, Pennsylvania’s present Auditor General, the Dean of

Duquesne Law School, private attorneys, law enforcement

19

officers, defense attorneys, District Attorneys, and Pennsyl-

vania’s present Attorney General, established Justice Larsen’s

general reputation and character as an honest, diligent, impar-

tial, caring and intelligent individual and jurist. (Uehlein, TR

at 1066-70; Lewis, TR at 1162-73; Cindrich, TR 1174-83; Light-

man, TR 1221-30; Zavarella, TR 1319-21; Bascelli, TR 1385-87,

McCommons, TR 1387- 90; Hafer, TR at 2481-84; Preate, TR

at 2485-2505; Mendelson, TR at 2933; EX R-24; EX R-25).

9. Evidence was presented that Justice Larsen, through-

out his life, has demonstrated a genuine concern for the har-

ried, the troubled, and downtrodden by personally intervening

in attempts to address and resolve the personal and profes-

sional problems of Judge Finkelhor, Judge McFalls, and Judge

Ross and through his conduct in befriending and supporting

Attorney Ashton in his struggle with alcoholism and battles with

cancer after his reinstatement to the bar. (Ashton, TR at 190-04;

Zavarella, TR at 1332-34; Larsen, TR at 2670-01, 2681-83,

2541-48, 2518, 2595-97).

10. Further evidence of Justice Larsen’s lifetime concern

and compassion for his fellow man was presented in the form

of an editorial printed by the Pittsburgh Post Gazette, on

December 23, 1964. After lamenting the unwillingness of mem-

bers of modern society to come to each other’s aid and get

involved, the article went on to state:

In view of this recent history of callous indifference

to the suffering of one’s fellow man, it was most reas-

suring to read about the Pittsburgh lawyer, Rolf Lar-

sen, who subjected himself to assault rather than

tolerate the annoyance of a defenseless woman.

Mr. Larsen intervened and, for his pains, was beaten

by a Baltimore visitor subsequently charged by police

with drunkenness and assault and battery.

We commend Mr. Larsen for his chivalry in an age

where it has all but ceased to exist. He is his brother’s

keeper and all of us are enriched by his conscience

and his courage.

This evidence was supported by a second editorial in the Fall

1987 edition of Juris: The Duquesne Law School News Maga-

zine, which quoted the Pittsburgh Post Gazette editorial ver-

batim, and went on to state:

We thought it would not be too extravagant to draw

on the Post Gazette’s comments since it tends to

characterize the life and service of Justice Rolf Lar-

sen. Moreover, since the pretext for electing (or

retaining) a judicial candidate cannot be measured

exclusively by his or her opinions alone — we don’t

elect opinions to office — the foregoing observations

aptly capture the essence of this otherwise enigmatic

justice.

(Emphasis added). (EX R-24; EX R-25).

11. Justice Larsen’s excellent reputation and high stand-

ing in the community both as a caring individual and as a

respected jurist was further evidenced by his receipt of numer-

ous honors and awards, including:

Outstanding Jurist Award - Pennsyivania District

Attorney’s Association, August 7, 1985;

Judicial Excellence Award - Pennsylvania AF LCiOo.

December 12, 1986;

Justice Michael A. Musmanno Award - Philadelphia

Trial Lawyers Association, July 12, 1986;

Allegheny County Citation of Mert, Allegheny County

Board of Commissioners, December 12, 1986;

Humanitarian Award, Careers, Inc., June 16, 1984:

Special Tribute, American Cystic Fibrosis Founda-

tion, (date not specified in the Juris article);

Man of the Year - 1981, Catholic War Veterans, Janu-

ary 23, 1982.

(EX R-24).

12. Justice Larsen’s character and reputation as an ethi-

cal and competent jurist was further supported by evidence

of the endorsement of his retention as Associate Justice of our

Supreme Court in 1987, by various highly respected organi-

zations, including:

— Pennsylvania State Democratic Committee

— Pennsylvania Republican State Leadership

Committee

_— Pennsyivania State Education Association

— Pennsylvania AFL-CIO

— Pennsylvania Mothers Against Drunk Driving

— Pennsylvania Fraternal Order of Police

— Pennsylvania Chiefs of Police Association

— Pennsylvania District Attorney’s Association

— Pennsylvania Bar Association

(EX R-24, EX R-25).

13. Justice Larsen’s commitment to the improvement of

Pennsylvania’s justice system, above and beyond his numer-

Ous significant opinions for the Supreme Court, was demon-

strated by evidence of his initiation of substantial reforms in

Allegheny County support payment enforcement, and his

development and introduction of innovations such as the One

Day/One Trial jury service system, the Client Security Fund,

and the Jury Questionnaire for evaluation of trial court judi-

cial performance. (EX R-24).

14. Based upon the foregoing we find that:

Justice Larsen enjoys an excellent reputation for

truthfulness, integrity and ethical conduct as an

individual, and as a jurist;

Justice Larsen is respected as a caring and compas-

sionate individual; and finally,

Justice Larsen is further respected as a well-quali-

fied, diligent, and effective jurist dedicated to the

maintenance and improvement of Pennsvivania’s

justice system.

Discussion

Our findings regarding Justice Larsen’s character evidence

22

are a principle point of divergence between this report and the

report filed by the Honorable Bruce W. Kauffman, James H.

Higgins, Lawrence T. Hoyle, Jr., Esq., and Mrs. Antonia L.

Scarlata. The later report briefly notes that character evidence

was presented, makes no finding regarding the evidence, and

then drops the character evidence issue entirely without ever

considering the weight to which Justice Larsen’s excellent

character was entitled in accessing the numerous ambiguities

and conflicts in the evidence presented on each of the charges

presented.

The copious evidence of Justice Larsen’s excellent character

for truthfulness, integrity, compassion and competence was

both compelling and entirely uncontradicted. Significantly, the

failure to give the character evidence its proper weight in

analyzing the evidence is in direct contravention of unanimous,

clear, and binding Supreme Court precedent. Matter of Sy/-

vester, supra (per Stout, J.; Nix, C.J., and Flaherty, McDer-

mott, Zappala, and Papadakos, JJ., join). :

This distinction between our Reports is critical. The weight

given to the character evidence permeates the analysis in each

Report. While we note this difference in particular instances,

infra, we imply the distinction with regard to all conflicts and

ambiguities in the evidence which relate to Justice Larsen’s

conduct, or which involved testimony by Justice Larsen.

il. EVIDENCE AND FINDINGS - CHARGE |

The first charge involves an allegation of an attempt by Jus-

tice Larsen to influence Judge Ross by an ex parte conversa-

tion relating to the Estate of Francis case, which was pending

before Judge Ross at the time of the conversation at issue.

It is suggested that Justice Larsen was attempting to aid

Attorney Robert Lampi and his counsel, Attorney James

Ashton, in connection with a claim for the return of $17,000

by Attorney Lamp! to the Francis Estate. It is further suggested

that Justice Larsen was motivated to attempt to influence Judge

Ross on Attorney Lampl’s behalf as the result of Attorney

Ashton’s involvement in a real estate transaction in which Jus-

tice Larsen and his daughter, Nina Larsen, purchased undevel-

oped land from Mr. Nikolai Zdrale in Fairfield Township, West-

23

moreland County.

We shall begin with initial findings regarding the relevant

testimony provided, and then conclude with ultimate findings

of fact based upon our assessment of the credibility and weight

to be assigned to the testimony and evidence submitted.

Our ultimate findings may be summarized as foliows:

— there was no need for Justice Larsen to attempt

to influence Judge Ross on Attorney Lampl’s behalf;

— there was no motive for Justice Larsen to attempt

to influence Judge Ross on Attorney Lampl’s behalf;

— Justice Larsen did not attempt to influence Judge

Ross on Attorney Lampl’s behalf; but

— Justice Larsen, without” apparent improper

motive, improperly provided Judge Ross with a pro-

hibited ex parte tip concerning possible bankruptcy

fraud in a case over which Judge Ross was then

presiding.

A. BACKGROUND REGARDING ESTATE OF FRANCIS

1. Eunice Ross is a commissioned judge of the Allegheny

Court of Common Pleas, and has served in that capacity since

her initial appointment in 1972. (Ross, TR at 795-96).

2. Attorney Robert Lampl is a sole practioner practicing in

the greater Pittsburgh area with a concentration on bankruptcy

and debtor/creditor cases. (Lampl, TR at 31-32).

3. Attorney Ashton is an attorney who was readmitted to

practice in Pennsylvania and federal courts in 1984 following

his substantial rehabilitation and recovery from problems

related to alcoholism which led to his original disbarment for

felony offenses related to his substance abuse. Attorney Ashton

had offices in the same building as Attorney Lampl. They

referred cases to each other, and occasionally acted as co-

counsel. Attorney Ashton represented Attorney Lamp! in the

Estate of Francis case. (Ashton, TR at 180-01, 230; Lampi, TR

at 55).

4. Attorney Lampl represented Mr. Homer Douglas Francis

in Bankruptcy Court; but, while bankruptcy proceedings were

still pending, Mr. Francis died. (Lampi, TR at 55-56; EX B-5;

24

,

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Tis ciciceininmeacaeeinaliiha aac

SLE RARE Dah CARS BG RS

Oe i - Aordin BO ~ Me “a

:

EX B-9; EX B-10, EX B-62).

5. The matter of Estate of Francis was opened in Allegheny

Court of Common Pleas on behalf of the estate of Mr. Francis,

and Judge Ross was assigned to preside over the case. (Lampl,

TR 57-58).

6. Attorney Jon Botula and Ms. Barbra Vanyo were

appointed co-administrators on September 29, 1982. They

were subsequently removed as co-administrators by order of

court. (EX B-5).

7. In January 1986, the administratrix of the Francis Estate

filed a motion to show cause why Attorney Lampl should not

be ordered to return approximately $17,500 he had dispersed

for Mr. Francis as his attorney in the bankruptcy matter prior

to Mr. Francis’ death; Judge Ross entered an order directing

Attorney Lampl to show cause as requested. (EX B-5).

8. Attorney Ashton represented Attorney Lampl in the

proceedings before Judge Ross.

9. On May 30, 1986, Justice Larsen met with Judge Ross

and informed her that two informants who wished to remain

anonymous had told him that Jon Botula had received the

money in the Estate of Francis case, and used the money to

buy a condominium in Florida.

10. On April 19, 1987, an article was published which sug-

gested that Justice Larsen, Attorney Ashton, and Attorney

Lamp! had been involved in a questionable land deal in May,

1986. This article came to Judge Ross’ attention and caused

her to reconsider the nature and import of Justice Larsen’s

May 30, 1986 tip. When that reconsideration occurred is

unclear, though it seems probable that it did not occur until

after the JIRB meeting on May 18, 1987, and after a court hear-

ing in the Estate of Francis case on July 7, 1987, as Judge

Ross’ conduct on both occasions indicated an absence of any

well-formed suspicion of impropriety concerning the May 30,

1986 tip.

11. On July 7, 1987, Judge Ross indicated at a hearing in

the Estate of Francis case that she was satisfied with the

responses and documentation submitted on Attorney Lampl’s

behalf and would consider that aspect of the case closed if

the attorney for the estate had no objections. The attorney for

the estate raised limited objections to the entitlement of a few

25

recipients of certain checks, and so a final hearing on the mat-

ter was scheduled for October 27, 1987. (EX R-5).

12. On October 8, 1987, one month before Justice Larsen’s

scheduled retention election, an article appeared on the front

page of the Pittsburgh Post Gazette by Bill Moushey discuss-

ing the May 30, 1986 conversation between Justice Larsen and

Judge Ross, and the Zdrale land deal. The article suggested

that Justice Larsen had specifically attempted to influence

Judge Ross on behalf of Attorney Lampl and Attorney Ashton

in the Estate of Francis case, and that Attorney Ashton and

Attorney Lampi had been involved in Justice Larsen’s ques-

tionable and very favorable land purchase from Mr. Zdrale at

about the same time. The article indicated that Justice Lar-

sen was suspected of impropriety and that Judge Ross had

reported the matter to the Justice Department and to “‘at least

one Official of state government.” The source of the disclosures

was not revealed in the article. (See Moushey, ‘‘Larsen asked

relief for lawyers,’’ Pittsburgh Post Gazette at 1 (October 8,

1987)).

13. Attorney Lamp! testified that he was told by Mr. Moushey

that his principle source for the article was a member of Judge

Ross’ staff. (Lampi, TR at 90, 92 & 133). Mr. Moushey declined

to confirm or deny Attorney Lampl’s assertions. (Moushy, TR

at 1145-46, 1657-85).

14. At the hearing before this Board, Judge Ross denied

having anything to do with the Moushey articie, or knowing

how Mr. Moushey received information concerning Justice Lar-

sen’s conversation with her or her reports of the matter to state

and federal authorities. Judge Ross noted various significant

inaccuracies in the article, including the assertion that Jus-

tice Larsen had mentioned Attorney Ashton and Attorney Lampl

in the May 30, 1986 meeting, which even she denies. She also

noted that only $500,000 rather than $2,000,000 dollars (as

indicated in the article) was suspected to have been improperly

taken from the Francis estate. (Ross, TR at 865-67).

15. Following publication of the Moushey article, Attorney

Ashton moved to have Judge Ross recuse herself due to the

ex parte contacts suggested in the article. In denying the

motion, Judge Ross stated:

26

4 The Petition for recusal on its face fails to allege any

| facts which would indicate that this Court is biased

or prejudiced or not impartial toward Mr. Lampl.

The Court has no control over what newspaper

writers write about a public record. The opinion

expressed in the article was the opinion of the writer

of the article. The article indicated that this Court,

and properly so, would not comment about that case

nor about the allegations concerning Justice Larsen.

The court is well aware, under the Canons of Judi-

cial Ethics, the court may not, ever, comment to any

newspaper reporter about pending litigation and cer-

tainly Homer Douglas Francis litigation. This Court

has been careful to preserve the rights of all parties

who appeared before it. | am sure that if the court

had not been so impartial, we would have concluded

these matters a long time ago. Your motion will be

denied Mr. Ashton.

(Lampl, TR at 92, 153-54; EX R-3, at 19-20; EX R-5).

16. Judge Ross’ February 29, 1988 opinion evinces a pro-

found change for the worse in her disposition toward Attor-

ney Lampl’s conduct in the Estate of Francis case from that

which she had expressed at the July 7, 1987 hearing. Her opin-

ion provides in pertinent part:

Respondent never disclosed initial fees to the

bankruptcy court nor did he seek or obtain approval

of subsequent fee payments (two of which were

received after decedent’s death). He is unable,

because his records no longer exist, to testify as to

services rendered or time spent or expenses incurred

with the specificity and detail required by Rule 201 6

of the bankruptcy court. The dismissal of the

proceedings on March 30, 1986, oy that court does

not constitute an approval of the fees nor have the

; creditors ratified or approved them and certainly the

; deceased debtor could not.

Respondent failed reasonably to supervise or moni-

tor the debtor’s use of estate funds, compounding

the hemorrhage of assets from the estate. His actions

raise no equity in favor of permitting him to retain

any part of the fees paid over to him which were the

subject of citation and petition.

Respondent was at least negligent in his failure to

ensure that the debtor filed monthly financial state-

ments or a plan of arrangement. He put estate funds

at risk by his devious purchase of the Malley estate

judgment followed by two questionable sales from

which a profit was reaped, part of which came back

to the instant estate in addition to the original loan

amount. He is fortunate this estate lost nothing.

Whether the Malley estate suffered is not for this

Court to decide. Respondent’s loose supervision

made it possible for thousands of dollars of estate

money to be frittered away in payment for luxury or

non-estate items bearing no relationship to dece-

dent’s business and its debts.

Under Disciplinary Rule 6-101 A(S3) a lawyer is

required not to neglect matter entrusted to him. This,

of course, applies to practice in the state courts of

Pennsylvania and is cited in a cautionary fashion,

as a makeweight in sustaining the surcharge already

imposed by reason of the failure to comply with

bankruptcy statute and rules.

Respondent, Robert O. Lampl, Esq., will be required

to disgorge all counsel fees in the amount of $3500

paid to him in connection with the Low-Vol Fuels

bankruptcy proceedings. The petition and citation will

be dismissed as to the $10,000 Malley loan and the

two $2000 checks paid to Ford Motor Credit Com-

pany. The $1000 fee retained from the Fayette realty

sales was not the subject of petition and citation and

will at this time not be surcharged.

;

’

;

:

:

:

Any claim for unpaid fees will be denied.

(Emphasis added). (EX B-9 at 9-10).

17. Attorney Lampl’s appeal of the February 29, 1988 opin-

ion and order, along with the denial of the October 26, 1987

recusal motion was quashed as untimely. The Superior Court

did not address the merits of the recusal motion or the order.

(EX B-62; Ex R-18).

18. On July 29, 1988, Attorney Lamp filed a motion for

reconsideration of the February 29, 1988 order expanding upon

its grounds for recusal and specifically requesting that a sec-

ond judge rule on the recusal motion. On August 8, 1988,

Judge Ross denied the motion for reconsideration. (EX R-4;

EX R-16).

19. On August 18, 1988, Attorney Lamp! filed exceptions

to the August 8, 1988 order. On August 19, 1988, Judge Ross

entered an order dismissing the exceptions. (EX R-17).

20. On December 2, 1988, Attorney Lampl’s appeal from

the August 8, 1988 and August 19, 1988 order was quashed,

again on procedural grounds. (EX. B-62).

21. To date, no one but Judge Ross has passed on the

merits of Attorney Lampl’s motion to have Judge Ross recuse

herself on the basis of her acknowledged ex parte communi-

cations with Judge Cosetti, Judge Markovitz, and Justice Lar-

sen, relating to the Estate of Francis case while it was pending

before her. We note that her acknowledged discussions with

Attorney Vaira and U.S. Attorney Johnson also involved ex

parte discussions of the Estate of Francis case.

22. Attorney Lamp! and Attorney Ashton both denied ever

speaking to Justice Larsen about the Estate of Francis case.

Justice Larsen denies having spoken with Attorney Lampl or

Attorney Ashton regarding the Estate of Francis case. (Ashton,

TR at 245; Lampl, TR at 72; Larsen, TR at 2520, 2552).

23. Neither Attorney Lampl, nor Attorney Ashton, nor Judge

Ross found anything in the rule to show cause which would

demonstrate a need or motive for Justice Larsen (or anyone

else) to intervene on Attorney Lampl’s behalf in the Estate of

Francis case. (Ross, TR at 936-37; Lampl, TR at 75; Ashton,

TR at 246).

24. Justice Larsen denies intervening with Judge Ross on

behalf of Attorney Lampl or Attorney Ashton, in connection with

the Estate of Francis case. (Larsen, TR at 2545-47, 2555,

2738-39).

25. Based upon the foregoing, we find that:

— there was no need for Justice Larsen to attempt

_to influence Judge Ross on Attorney Lampl’s behalf

in the Estate of Francis case.

— Justice Larsen did not intervene on Attorney

Lampl’s behalf in the Estate of Francis case.

B. FAIRFIELD TOWNSHIP LAND PURCHASE

1. In September 1971, Mr. Nikolai Zdrale purchased a

34.8-35.9 acre tract of undeveloped land in Fairfield Township,

Westmoreland County. (Zdrale, TR at 1239; Smith TR at 1604).

2. For seven years prior to the fall of 1985, Mr. Zdrale had

tried to sell the property. No asking price was set; all offers

were to be entertained. It was advertised for sale and listed

with a couple of realtors, however, no offers were received.

(Zdrale, TR at 1239-40, 1291, and 1303).

3. There were several substantial hindrances identified by

Mr. Zdrale, Attorney Lampl, Attorney Ashton, Justice Larsen,

and expert real estate appraisers Daniel Smith and Glen Ray,

which would drive away prospective buyers and/or reduce any

offer for the property:

a) The property was remote undeveloped land, with

no available utilities except electricity, which was

accessible only by unpaved roads in a Township with

no local police protection, no fire protection, and no

zoning code. (Lampl, TR at 110-13; Smith, TR at

1619-20; Ray, TR at 506-07; Larsen, TR at 2530).

b) Man-made lakes located on the property and

covering approximately one-third of the total acre-

age of the property were held by earthen dams which

were in a state of disrepair; trees, shrubs, and espe-

cially weeping willows growing on and near the face

of the dams severely threatened its structural

Boe a ae eeleee al Wethadwd OF ae

integrity; the dam was already suffering leakage and

heavy overflow and was in violation of Pennsyliva-

nia Department of Environmental Resource regula-

tions. The lake and dams were liabilities rather than

assets in that condition, and could cost between

$20,000 and $30,000 to repair, which is more than

it would cost to install such lakes originally. There

would also be an extremely high maintenance cost

for such lakes. (Zdrale, TR at 1240-41; Smith, TR

1600-17, 2313, 2325).

c) The property was heavily encumbered with liens.

When it was first offered for sale it was encumbered

with over $700,000 in liens. Attorney Ashton indi-

cated in November 1985 that the property was then

subject to approximately $300,000 in liens. In Febru-

ary 1986, when Justice Larsen purchased the prop-

erty, he took subject to over $180,000 in liens for

liquidated claims as well as subject to indeterminate

liens for any judgment which might eventually be

entered against Mr. Zdrale in five then pending law

suits. The property was at all times involved subject

to liens far in excess of the value of the property. No

money could be borrowed on the property in those

circumstances. (Zdrale, TR at 1239 1243); Ashton

TR at 204-06; Larsen, TR at 2523; EX B-72).

d) Mr. Zdrale’s only chances of extinguishing the

liens and thereby clearing title to the property were

the possible sale of a landfill in which he had a sub-

stantial non-voting interest, and an anti-trust suit he

was prosecuting as plaintiff. When Justice Larsen’s

purchase was being negotiated, Attorney Ashton,

who represented Mr. Zdrale, estimated Mr. Zdrale’s

chances of extinguishing the liens as one in ten. Mr.

Zdrale was even less optimistic in this regard plac-

ing his chances at zero. (Ashton, TR at 213; Larsen,

TR at 2525; Zdrale, TR at 1244).

e) Between 1983 and 1986, a considerable number

31

of arson fires had occurred in the area around the

property, with several arson fires involving second

homes of absentee owners. The threat of such arson

has a depressing effect on property values. (Lamp,

TR at 110; Ashton, TR at 203; Ray, TR at 500; Smith,

TR at 1619; Larsen, TR at 2530).

. f) The Fairfield Township area is a depressed area,

which has a negative effect on property values gener-

ally. (Smith, TR at 1621).

4. Although the precise value of the property unencumbered

by liens is contested, all agree that it was worth only a small

fraction of the $180,000 value Mr. Zdrale had placed on the

property in the bankruptcy papers he filed:

a) Justice Larsen testified that after checking with

various real estate agents in the area, he had learned

that the asking price for land in that general area was

between $400 and $1,000 an acre or between

$14,000 and $35,000 for an undeveloped 35 acre

parcel. (Larsen, TR at 2526).

b) Attorney Ashton received a rough opinion from

land developer Alan Paterson that unencumbered,

the Zdrale property could be worth no more than

$30,000. The record does not disclose whether Mr.

Paterson inspected the property or was aware of the

condition of the dams. (Ashton, TR at 203).

c) Mr. Smith, a well-qualified real estate appraiser,

~ set the value of the property (if unencumbered by

liens) at $21 ,000-$24,000, without discounting for the

expense of repairing the dams or removing the lakes.

His detailed testimony was supplemented by a

detailed appraisal report which is included in the rec-

ord. (Smith, TR 1617, 2325, EX R-33).

d) Glen Ray, the appraiser selected by the Board,

set the value of the property at $42,000. In his tes-

32

: z

:

s

i

timony he indicated that the lakes significantly

enhanced the value of the property and that $22,400

of the total value was attributable to the lakes. He

noted that when he visited the property in January

of 1988, he saw nothing wrong with the dams. Mr.

Ray filed a brief report in support of his appraisal.

(Ray, TR 490-510; EX B-22).

5. We find that each of the appraisals is within a range of

reasonable variance given the subjective nature of expert real

estate appraisals.

6. We note that Mr. Ray’s testimony indicated a more Cur-

sory inspection of the property and especially of the dams. We

further note that the lakes would have been frozen in West-

ern Pennsylvania in January when Mr. Ray conducted his on-

site appraisal, making careful inspection of the dams difficult,

if not impossible. But for the material difference in their treat-

ment of the lakes as an asset or as a liability, both Mr. Smith

and Mr. Ray appear to agree on a base value in the $21,000

to $42,000 range for the Zdrale property, if unencumbered by

liens, and if the dams were not in disrepair.

7. We note that there was some limited potential for latent

bias on Mr. Ray’s part against Justice Larsen as the result of

Mr. Ray’s unsuccessful attempt to sell Justice Larsen a 52 acre

parcel of undeveloped land in Cook Township, Westmoreland

County in 1983, for an asking price of $8,000. Disagreement

over price and Mr. Ray’s commission impeded the deal. We

do not consider this arguable potential for bias to be material

to our analysis. Interestingly, however, that property was sold

in November 1985 for $70,000, demonstrating both the vola-

tile shifts which occur in the value of undeveloped land, and

the speculative nature of investments in such land. (Ray, TR

at 509-10).

8. In September or October of 1985, Attorney Ashton began

representing Mr. Zdrale in an anti-trust matter Mr. Zdrale was

pursuing as plaintiff. (Ashton, TR at 181).

9. Attorney Ashton became aware of Mr. Zdrale’s critical

financial condition and referred him to Attorney Lamp! who

thereafter represented Mr. Zdrale in his business bankruptcy.

Attorney Ashton was also co-counsel of record in the

bankruptcy matter and appeared with Attorney Lampl at some

of the hearings, though Attorney Lamp! was primarily respon-

sible for the bankruptcy case and Attorney Ashton was not

experienced in bankruptcy matters. (Ashton, TR at 181; Lamp,

TR at 49-51; EX B-1; EX B-4).

10. During his representation of Mr. Zdrale in the anti-trust

matter, Attorney Ashton became aware of Mr. Zdrale’s desire

to sell his Fairfield Township property. (Ashton, TR at 199;

Zdrale, TR at 1291).

11. Attorney Ashton had been disbarred in the early 1970’s

as the result of problems related to his alcoholism. In 1984,

Attorney Ashton was readmitted to the Pennsylvania and fed-

eral bars following his substantial rehabilitation. (Ashton, TR

180, 192).

12. Following his reinstatement, Attorney Ashton met Jus-

tice Larsen for the first time at a social gathering; they dis-

cussed Attorney Ashton’s struggle against alcoholism and his

efforts to renew his practice. Justice Larsen became a con-

cerned and supportive friend, and helped Attorney Ashton in

his continued struggle with alcoholism as well as through sub-

sequent battles with cancer which twice required surgery. Jus-

tice Larsen informed Attorney Ashton early in their friendship

that he would recuse himself in any matter involving Attorney

Ashton which came before him. (Ashton, TR ai 193, 246,

285-86; Larsen, TR at 2518-19).

13. Under the Pennsylvania Code of Judicial Conduct, a

Judge or Justice’s opportunities for financial investment are

severely restricted. Real estate investment is one of the few

financial activities specifically authorized by the Code. Pa.Code

of Judicial Conduct Canon 5 (see especially Canon 5(C)2)).

Thus, real estate as an investment opportunity has unique

value to judges which it would not have to others who may

choose freely from a wide array of investment opportunities

forbidden to judges.

14. Justice Larsen had for several years been looking to

acquire some undeveloped rural land. His daughter and secre-

tary confirmed this fact. It was also confirmed by the real estate

appraiser selected by the Board, Mr. Ray. Attorney Ashton had

OER nat tm ys A ANCA hei OS

become aware of Justice Larsen’s general interest in purchnas-

ing undeveloped rural land as the result of various socia! con-

versations with Justice Larsen. (Ashton, TR at 190, 204, 261-6"

Ray, TR at 508-09; N. Larsen, TR at 1390; Roberts, TR at

1414-15; Larsen TR at 2523-24).

15. Sometime in November 1985, Attorney Ashton hac a

chance meeting with Justice Larsen in front of Justice Larsen's

office at the Grant Building in Pittsburgh during which he men-

tioned to Justice Larsen the availability of the Zdrale property

Attorney Ashton described the property favorably, but notec

the speculative nature of any purchase in light of the consider-

able outstanding liens. Justice Larsen indicated interest, anc

it was agreed that Attorney Ashton would obtain pictures for

Justice Larsen to review. (Ashton, TR at 204-06; Larsen, TR

at 2523-25).

16. Justice Larsen reviewed the five sequential photographs

forwarded by Attorney Ashton, and was sufficiently interestec

to walk the property with Attorney Ashton sometime between

Thanksgiving and Christmas in 1985. (Ashton, TR at 205-06

Larsen, TR at 2525-27).

17. In light of the drawbacks noted in finding 3, and espe-

cially the one in ten chance of ever receiving clear title to the

property, Justice Larsen settled on an offer of $5,000.00. Jus-

tice Larsen’s method of arriving at this offer price was to take

the highest per acre asking price in the area, add $15,000 for

the lakes (which he apparently considered assets, not having

Mr. Smith’s expert assessment of the state of disrepair of the

dams at that time), and divide by 10, in light of the one in ten

chance of gaining title. (Larsen, TR at 2526).

18. As the result of his receipt of a $30,000 rough appraisal!

value from a developer for the property if unencumbered anc

notice of a possible deal in the works for the landfill, Attorney

Ashton recommended to Mr. Zdrale that he reject Justice Lar-

sen’s offer. (Ashton, TR at 203, 210-11; Zdrale TR at 1258-59)

19. Mr. Zdrale nonetheless accepted the offer. He was ill,

destitute, and pessimistic about his chances for economic

recovery. He had no control over the landfili deal. and no

meaningful (i.e. reasonably binding) options agreements had

yet been signed. The $5,000.00 offer was the only offer for the

Fairfield Township property he received despite having trec

to sell the property for over seven years. The $5,000 offer was

his only certain source of cash for the foreseeable future, and

so in December 1985 Mr. Zdrale indicated his acceptance of

Justice Larsen’s offer. He also indicated that despite his

improved prospects in late January and early February after

the first non-binding option agreement on the landfill sale was

made, he did not want to go back on the gentlemen’s agree-

ment reached in December when prospects were gloomier;

he simply did not want to go back on his word. Finally, even

after it became apparent that the liens would be paid off, Mr.

Zdrale indicated that he still considered the $5,000 price fair,

because of the high cost he expected to be necessary to repair

the dams on the property. (Zdrale, TR at 1239, 1241, 1244-45,

1258-59; Lampi, TR at 106-07, 114-16).

20. In late January 1986, Justice Larsen and his daughter

signed the draft agreement prepared by Attorney Ashton. The

agreement listed all encumbrances, including several business

liens. (Ashton, TR at 197-98, 209-210; EX B-7A).

21. In February, the landfill deal looked promising and Attor-

ney Lamp! felt that even if current negotiations did not suc-

ceed, a deal on similar terms could be completed in the near

future. Attorney Ashton advised Mr. Zdrale not to finalize his

land deal with Justice Larsen, but Mr. Zdrale went ahead with

it against counsel’s advice. (Ashton, TR at 210-13, 263-64;

Zdrale, TR at 1258-59; Lampi, TR at 51-52, 135-138).

22. On February 20, 1986, Justice Larsen’s secretary, Mrs.

Roberts, drafted a check for $5,000 to Mr. Zdrale to finalize

the agreement. The transfer of the encumbered deed from Mr.

Zdrale to Justice Larsen and his daughter was made the same

day. (Roberts, TR at 1415; EX B-44).

23 Mr. Zdrale met Justice Larsen after the sale was com-

pleted, and did not know until that time that he was a Justice

of the Pennsylvania Supreme Court. Mr. Zdrale spoke with Jus-

tice Larsen only once, when he showed him the property

boundaries after the sale. (Zdrale, TR at 1241-42).

24. Three months after Justice Larsen purchased the Zdrale

property, the sale of the landfill in which Mr. Zdrale was

interested was finalized. Mr. Zdrale eventually paid all credi-

tors 100% of debts owed, including lien holders on the Zdrale

property sold to Justice Larsen. Justice Larsen and his daugh-

36

Stead ct Aaa her MRF eA DALAT RE th DR Ts bo aE PE ty PAR ate Shia RD AE

ter then received clear title to the land purchased from Mr.

Zdrale. Mr. Zdrale still realized over $400,000 from the land-

fill sale for himself. Lampl!, TR at 122-03; Ashton, TR at 223;

EX B-1).

25. Attorney Lamp! represented Mr. Zdrale in his Chapter

11 business reorganization/bankruptcy matter during this time

period. Because of various business liens, the Fairfield Town-

ship property was part of the Zdrale business bankruptcy

estate. Attorney Ashton mistakenly assumed that because the

property was held by Mr. Zdrale personally it would not be

involved in a Chapter 11, business reorganization/bankruptcy

matter. In hindsight, Attorney Ashton acknowledged that he

should have sought approval of the sale of the Zdrale prop-

erty from the Bankruptcy Court as the result of the various busi-

ness liens recorded against it. No challenges to the sale were

raised in the bankruptcy proceedings, however, in light of the

contemporaneous landfill deal, and the subsequent extinguish-

ment of all creditors’ claims by payment in full.

26. There is no evidence to suggest that anyone involved

became aware of Attorney Ashton’s error until it had already

become moot.

27. Based upon the foregoing, we find that:

— Attorney Ashton’s first discussion of the Zdrale property

with Justice Larsen occurred approximately two to three ©

months before a rule to show cause was ever issued to Attor-

ney Lampl in Estate of Francis;

— Attorney Lamp! was not involved in the land deal;

— Attorney Lampl’s attorney in the estate case, Attorney

Ashton, though instrumental in initiating the land deal, nonethe-

less specifically advised Mr. Zdrale to reject Justice Larsen’s

offer; and therefore,

— The Fairfield Township land deal provided no motive for

Justice Larsen to attempt to influence Judge Ross on Attor-

ney Lampl’s behalf in the Estate of Francis case.

C. THE LARSEN/ROSS MEETING

1. Justice Larsen and Judge Ross were the nominees of

the same party, were elected together, and served together

on the Allegheny County Court of Common Pleas between

37

1974 and 1978. (Ross, TR at 814; Larsen, TR at 2506-07).

2. Justice Larsen and Judge Ross had until.these proceed-

ings enjoyed courteous professional relations. (Larsen, TR at

2537, 2552; Roberts, TR at 1403-03).

3. Justice Larsen testified that prior to May 30, 1986, he had

received informal complaints from Judge Zavarella and others

regarding Judge Ross’ professional and personal conduct.

None of the complaints involved good cause to believe Judge

Ross had committed ethical violations which would be required

to be reported to disciplinary authorities; but, the complaints

and concerns, if left unaddressed, could have affected her per-

sonally, professionally, and politically. (Larsen, TR at 2540-44).

——4. The existence of such complaints and rumors was con-

firmed by the testimony of Judge Zavarelia and Attorney Lamp.

Judge Zavarella specifically testified that he had discussed var-

ious concerns regarding Judge Ross’ judicial conduct directly

with Judge Ross, and that as his discussions with her had not

been productive, he discussed the same concerns with Jus-

tice Larsen in the hope that Justice Larsen would intervene

informally. Attorney Lampi discussed several concerns and

rumors he was aware of, which were generally circulating

among attorneys regarding Judge Ross’ personal and judicial

conduct. Because the rumors were wholly collateral to these

proceedings, no attempt was made to determine their truth or

falsity. We note that none of the complaints questioned her

ability to understand or recall information she received from

others. (Zavarelia, TR at 1321-83; Lampl, TR at 76-81).

5. It has been common practice in Pennsyivania, and other

jurisdictions, for judges to informally notify or admonish col-

leagues regarding complaints circulating about their personal

or professional conduct; Administrative Judges and Appellate

Court Judges (including Supreme Court Justices) have been

active in this respect. (Zavarella, TR at 1319-84; Larsen, TR

at 2540-44; cf. McDevitt, Judicial Disability and Removal Com-

missions, 45 Pa.B.A.Q. 118, 119 (1974); Note, Remedies for

Judicial Misconduct and Disability, 41 NYULR 149, 168-69

(1966)).

6. On Friday, May 30, 1986, Justice Larsen visited Judge

Ross in her chambers and engaged in a conversation. No one

else was present, and the conversation was not recorded.

(Larsen, TR at 2540-48; Ross, TR at 806-07).

7. Justice Larsen testified that he went to see Judge Ross

regarding complaints he had received from Judge Zavarella

and others, including particularly negative comments he had

overheard in the steamroom at his club. He indicated that he

communicated these matters to her as a friend and concerned

colleague, and that he was not making any accusations him-

self. He further testified that he recalled receiving a calll from

Judge Ross later that day or shortly thereafter, in which she

seemed quite concerned and asked if Justice Larsen thought

anyone would press a formal complaint against her; and that

he reassured her that he thought that was unlikely. (Larsen,

TR at 2537-47).

8. Judge Ross remembered the May 30, 1986 conversation

dramatically differently. On August 30, 1988, she testified that

the May 30, 1986 conversation began generally. She recalled

that they discussed: her University of Pittsburgh trustees meet-

ing and the conflict then arising over South African divestiture;

the excellent performance of an attorney Judge Ross had

appointed to represent a party in the Supreme Court; the pos-

sible outcome of a case then pending before the Supreme

Court; and, the status of a Senior Judge of the Superior Court.

Judge Ross indicated that Justice Larsen eventually stated,

‘listen, | met two guys on the street and they said to tell Judge

Ross in the Homer Douglas Francis case that John Botula took

all the money and used it to buy a condominium in Florida.”

She indicated that she had responded that she knew about

the condominium, and then told Justice Larsen that he was

wrong about who got all the money and listed for Justice Lar-

sen who got what, including the $17,000 which went to Attor-

ney Lampl, but that Justice Larsen replied, “‘you are doing a

good job, but Jon Botula is the one, you go after Jon Botula.”’

She indicated that Justice Larsen then got up and left

pleasantly. Judge Ross also recalled a follow-up call she made

to Justice Larsen to find out if his confidential informants would

come forward, but that Justice Larsen indicated that they would

not. (Ross, TR at 801-33).

9. Judge Ross flatly denied that Justice Larsen, or anyone

else (specifically including Judge Zavarelia), had ever raised

complaints or concerns to her regarding her judicial conduct.

39

(Ross, TR at 1001-1004).

10. Justice Larsen flatly denied Judge Ross’s account of

the meeting. He indicated that he did not recall discussing any

of the introductory topics noted, and testified further that he

had not even heard of the Estate of Francis case until October

1987. (Larsen, TR at 2515).

11. On Monday, June 2, 1986, Judge Ross sat on an en

banc panel hearing motions in the Estate of Francis case with

Judge Schwartz and Judge Zavarelia. Judge Ross did not com-

municate the fact or content of her discussion with Justice Lar-

sen to her colleagues on the panel or to the parties, nor did

she report it to this Board, as would have been required if Judge

Ross had considered Justice Larsen’s conversation to have

constituted an improper ex parte communication or an attempt

to influence her. (Pa.C.J.C. Canon 1; Pa.C.J.C. Canon 3(B\3)).

Judge Ross did not inform the parties or her colleagues on

the Estate of Francis case of the conversation any time after

that. (Ross, TR at 822, 861, 941; EX R-3; EX R-4; EX R-16:

EX R-17).

12. On Thursday, June 5, 1986, six days after her meeting

with Justice Larsen, Judge Ross contacted former United

States Attorney Peter Vaira. Judge Ross was a personal friend

of Attorney Vaira’s uncle, whom Attorney Vaira described as

his “mentor.”’ Judge Ross had worked with Attorney Vaira

previously orn a separate matter. In his testimony on August

31, 1988, Attorney Vaira indicated that he did not take notes

of his discussion with Judge Ross on June 5, 1986, and that

his memory of the precise content of their conversation was

not clear; but, Judge Ross had indicated in general and ‘‘cir-

cumspect”’ terms that Justice Larsen had given her a tip about

possible bankruptcy fraud in an estate case based upon infor-

mation he had received from someone on the street. Attorney

Vaira indicated that she had given him no reason to suspect

that Justice Larsen had acted from anything but the purest

motives in providing her with the “‘tip’’ concerning her case.

Attorney Vaira conceded that he had no first-hand knowledge

of the meeting between Judge Ross and Justice Larsen, and

no recollection of any further information from Judge Ross.

We note that Attorney Vaira also testified that he had ‘‘han-

died matters involving sensitive political matters like this”’

40

se i eR nae! el aan iS RAS

WE TA IAS APN RAN BiB Pi BEY II ose

PS ARIEL a NIETO EIR A We SE SONA ei tN Ae 7 LiL ht ELOY RNS AMAA Be Serco a tt EI, LN ABI ng

before, and that ‘‘I know a lot of hearsay, and some people

have called me,’”’ but that he had no further first-hand infor-

mation to relate to the Board. (TR at 1026-27). Attorney Vaira

recommended that she discuss the tip with Western District

of Pennsylvania United States Attorney Alan Johnson; and he

also suggested that she make a written record of the tip which

she indicated was ‘‘a good idea.’’ She did not indicate that

she had already begun such a record in her diary. (Vaira, TR

at 1024-46).

13. Judge Ross’ acceptance of Attorney Vaira’s suggestion

that she make a written record of the tip as ‘“‘a good idea”’ at

least arguably suggests that any notes of the May 30, 1986

meeting made by Judge Ross were made at least six days after

her meeting with Justice Larsen; though, on the other hand,

it may reflect only the degree of circumspection she exercised

in her conversation with Attorney Vaira. (Ross, TR at 801-33;

Vaira, TR 1024-46).

14. Attorney Vaira characterized his impressions as follows,

‘‘| presumed that the Justice [Larsen] had the best of motives

and was not good at these kinds of things. Quite often judges

may not be as good as we law enforcement people are in tak-

ing statements.’’ (Vaira, TR at 1045).

15. According to the Board interviewers’ report contained

in EX R-23, when interviewed by Board investigators on

November 9, 1987, Attorney Vaira indicated that Judge Ross

had informed him that Justice Larsen had suggested that mob

figures or narcotics were involved, and that it was the narcotics

aspect which led him to suggest to Judge Ross that she con-

tact U.S. Attorney Alan Johnson. At the hearing in this matter

on August 31, 1988, Attorney Vaira reviewed EX R-23 and spe-

cifically affirmed its accuracy. (TR at 1047). However, follow-

ing direct and cross-examination, on supplemental inquiry by

Board Member Hoyle Attorney Vaira indicated that Judge Ross

had made no mention of ‘‘narcotics” or “mob figures” and

that those references were merely inaccurate interpolations

he had made, the source of which he did not know. (TR at

1048-49). Thus, his reference to the ‘‘mob figures” or “‘nar-

cotics” appears to be a classic “‘interpolation’’ type innocent

fallacy of testimony, as there is no other indication that Judge

Ross or Justice Larsen ever made such a reference. This

41

underscores the effects of the passage of time on the recollec-

tions of even the most forthright and disinterested witnesses

in this matter. (Vaira, TR at 1047-50; EX R-23).

16. Attorney Vaira testified that Judge Ross seemed

‘‘uncomfortable”’ about Justice Larsen’s visit (TR at 1026-27,

1038). However, when specifically asked by Board Member

Higgins, whether Judge Ross’ concern, as Attorney Vaira

recalled perceiving it, was inconsistent with his perception that

Justice Larsen had been acting from the best of motives, Attor-

ney Vaira explained that it was not inconsistent, and that the

discomfort which he was describing was that which wouid nat-

urally arise from the fact of the ex parte contact, regardless

of whether Justice Larsen had the best of motives for giving

Judge Ross the tip. (TR at 1050-51).

17. On October 13, 1987, Judge Ross told the FBI that she

had gone to Attorney Vaira because she thought Justice Lar-

sen had tried to influence her improperly. Judge Ross’ own

prior and subsequent statements and conduct, as well as Attor-

ney Vaira’s testimony, however, reveal that Judge Ross sus-

pected no attempt to influence her for an improper motive at

the time of her meeting with Attorney Vaira. (Vaira, TR at

1024-46; Ross, TR at 823-04, 865-87; EX R-1a; EX R-21, EX

R-22).

18. The indication in the interlineation on Judge Ross’ diary

page that she had discussed the May 30, 1986 conversation

with Attorney Vaira at “‘Cindrich’s” (a Pittsburgh law firm) was

incorrect. Her conversation with Attorney Vaira had not taken

place at ‘“‘Cindrich’s.’’ The indication in the diary entry that

she asked Vaira “‘if Larsen’s tip was a crime’’ was also inac-

curate; she had actually asked whether the conduct the alleged

tip concerned was criminal, i.e. would the conduct suggested

constitute federal bankruptcy fraud. Arguably, neither the error

nor the inaccuracy were mistakes likely to be made in con-

temporaneous accounts of events, though t!.ey were of a type

likely to occur in an attempt to reconstruct events later from

a more distant past. It is possible that Judge Ross may have

been mistaken as to when the diary entries had been made.

(Vaira, TR at 1024, 1035-07; Ross, TR at 988-99; EX R-21; EX

R-22).

19. On Monday, June 9, 1986, Judge Ross had a telephone

42

POSES Riley OL let sh eet: Smee 8 Pa ios

hk deel hale uae

conversation with Western District of Pennsylvania United

States Attorney Alan Johnson, regarding her May 30, 1986 con-

versation with Justice Larsen. By the time of the August 31,

1988 hearing before this Board, U.S. Attorney Johnson had

no independent recollection of his conversation with Judge

Ross more than two years earlier, a fact he freely and for-

thrightly conceded. He did authenticate a brief hand written

note he had-made at the time of the call, and a brief typed

memo made shortly after the call. Both indicated that Judge

Ross had informed him that Justice Larsen had passed on a

tip to Judge Ross that he had received from two men on the

street that Jon Botula had received the money in the Estate

of Francis case, and that Judge Ross was reporting it to him

as a tip on a possible bankruptcy fraud. He indicated that his

notes did not reflect an attempt to make a verbatim record of

his conversation with Judge Ross. The notes and memoran-

dum do not reflect, nor did U.S. Attorney Johnson recall, that

Judge Ross had in any way intimated that Justice Larsen had

attempted to influence Judge Ross improperly, or that Justice

Larsen had done anything more than pass on a tip based on

hearsay regarding her case. There is no mention of mob figures

or narcotics in U.S. Attorney Johnson’s notes or memo; thus,

confirming that Attorney Vaira’s reference to mob figures or

narcotics was merely an inadvertent interpolation on his part,

and an example of an innocent fallacy of testimony. (Johnson,

TR at 1051-59; EX R-23).

20. Judge Ross conceded at the August 1988 hearing

before this Board that she had reported the matter to U.S. Attor-

ney Johnson solely as a tip regarding possible bankruptcy

fraud, and not as a complaint regarding Justice Larsen’s

alleged misconduct. Like her October 13, 1987 report to the

FBI regarding her conversation with Attorney Vaira (See |, C,

14), her October 13, 1987 report to the FBI included a simi-

iarly inaccurate characterization that her report to U.S. Attor-

ney Johnson had involved a complaint against Justice Larsen,

rather than merely the transmission of the tip alleged to have

been received from Justice Larsen by Judge Ross to U.S. Attor-

ney Johnson. (Johnson, TR at 1051-59; Ross, TR at 891-92;

EX R-1; EX R-1a).

21. Judge Ross stated in her testimony before this Board

43

that her only occasion between May 1986 and December 1986

to discuss the content of Justice Larsen’s alleged attempt to

influence her was with Judge Cosetti of the Federal Bankruptcy

Court who was presiding over a related case. She admitted

to having initiated several ex parte conversations with him

regarding the Estate of Francis case, and she stated that she

told him during one of those conversations that ‘‘Justice Lar-

sen came to see me and said ‘look, | met two guys on the street

and they said to tell Judge Ross in the Homer Douglas Francis

case that John Botula got all the money and put it in a con-

dominium in Florida’.’’ Significantly, Judge Ross’ own version

of her ex parte conversation with Judge Cosetti omits any refer-

ence to the critical follow-up comments, ““Botula’s the one, you

go after Botula,”’ which Judge Ross included in other reports

of the May 30, 1986 exchange between she and Justice Lar-

sen. (Ross, TR at 819-21).

22. By stipulation, Judge Cosetti flatly denied Judge Ross’

assertion. The stipulation provides as follows:

It is hereby stipulated and agreed among the par-

ties that Judge Joseph P. Cosetti of the Bankruptcy

Court of the Western District of Pennsylvania, if

called to testify, would testify that he had a number

of telephone conversations with Judge Ross in 1986

and 1987. That the substance of those conversations

was the handling of the Low-Vol Fuels case in the

Bankruptcy Court and how it impacted on the Homer

Douglas Francis Estate before Judge Ross. He would

also testify that he does not remember Judge Ross

telling him that Justice Larsen had intervened with

her on the Francis estate and that fact, if clearly com-

municated to him, would be so unusual that he would

probably remember it.

We find Judge Cosetti’s denial, rather than Judge Ross’

assertion, to be credible. (Cosetti, by stipulation, TR at 132-33).

23. On December 12, 1986, the Pennsylvania AFL-CIO

presented Justice Larsen with their Judicial Excellence Award.

In connection with that occasion, and despite Judge Ross’ tes-

timony that Justice Larsen had attempted to influence Judge

Ross improperly in the Estate of Francis case six months earlier,

Justice Larsen received the following note from Judge Ross

: on November 25, 1986:

“Dear Justice Larsen: | was pleased to send a con-

tribution of $50.00 to the labor tribute dinner in your

honor. | cannot attend because | recently had my arm

and harid operated on for severed tendons. | hope

the dinner is a success. Happy Thanksgiving. Sin-

cerely yours” ’’Eunice”’ (written) “‘Eunice Ross”

(typed).

Judge Ross acknowledged sending the note, but discounted

it as merely a “courteous” note. (Ross, TR at 980-81; EX R-20)

24. On March 26, 1987, Justice Larsen and Judge Ross

attended a viewing for Judge Watson’s deceased mother. Jus-

: tice Larsen sat by Judge Ross and had a friendly conversa-

tion with her. Judge Ross asked Justice Larsen if he could

arrange to have her included on the dais, rather than merely

in the audience, for the upcoming AFNA Dinner at which Mrs.

Anwar Sadat was to be the featured speaker. Justice Larsen

told her he would look into it, and in fact arranged for Judge

Ross to be moved onto the dais. (Larsen, TR at 2550-01; Ross,

TF at 901, 979).

25. On Sunday, April 19, 1987, an article by Jack Grochet

and Richard Gazarick regarding an FBI investigation into the

Zdrale bankruptcy appeared on Page A-1 of the Greensburg

Sunday Tribune Review with a large picture of Mr. Zdrale and

Attorney Lampl. The article was continued on page A-10 with

a large picture of Justice Larsen who was by then campaign-

ing for his retention election in the fall. The article suggested

possible impropriety with respect to the sale of Mr. Zdrale’s

Fairfield Township property to Justice Larsen. The story noted

that Attorney Ashton and Attorney Lampl represented Mr.

Zdrale. See Grochet & Gazarick, ‘‘Land Sale Scrutinized: FBI

chan ikp SA ath ah ie ria RRNA. DARROW ia oe TR Nd Sei OF

Looking Into Zdrale Bankruptcy,” Sunday Tribune-Review, at

A-1, A-10 (Greensburg, Pa. 4/19/87).

26. Judge Ross indicated that upon reading that article she

became convinced that Justice Larsen’s conversation with her

a year earlier had been part of a pattern of events which

indicated that Justice Larsen had passed the tip on to her in

an effort to aid Attorney Lampl, and his attorney in the Estate

of Francis case, Attorney Ashton, in return for Attorney Ashton’s

role in the Zdrale land deal. (Ross, TR at 874-75).

27. On cross-examination, Judge Ross’ testimony on this

point at the August 30, 1988 hearing before this Board was

somewhat confused. At several points she indicated that she

first drew negative inferences about Justice Larsen’s motives

as a result of the April 19, 1987 article. (Ross, TR at 823-24,

871, 873-75). In the same testimony, however, she indicated

that she felt from the beginning that Justice Larsen was sug-

gesting that she go after Jon Botula anc not the others, despite

her knowledge from bank records that others had also received

money, and that he was telling her, in effect, to find a fact in

a case before her regardless of what the evidence proved.

(Ross, TR at 828, 831-33, 835-36, 862). Upon further exami-

nation, however, Judge Ross conceded that she had not inter-

preted Justice Larsen’s words to her as anything but a tip about

possible bankruptcy fraud in the Estate of Francis case until

after she read about the Zdrale land deal in the April 19, 1987

article, and that only then did she reinterpret his meaning and

intent, and decide that the conversation should be reported.

(Ross, TR 875-88).

28. Judge Ross did not report Justice Larsen’s alleged

attempt to influence her improperly to the parties or her col-

leagues on the Estate of Francis case, despite her reinterpre-

tation of the meeting following review of the April 19, 1987

article.

29. This Board takes official notice of the fact that Judge

Ross participated in a teleconference meeting of the JIRB on

May 18, 1987, a full month after the appearance of the April

19, 1987 newspaper article, but that Judge Ross made no

report of the fact, content, or presumed import of her May 30,

1986 conversation with Justice Larsen as Canon 1 and Canon

3B (3) would require if she had been of the opinion then that

Justice Larsen had attempted to influence her improperly. We

take further notice of the fact that she remained silent on this

point despite the fact that the April 19, 1987 article was itself

discussed by the Board during that meeting and despite the

fact that she voted with the Board to issue a letter of inquiry

46

to Justice Larsen regarding the content of that article. (Minutes

of JIRB Conference Call Meeting 5/18/87; see also Rowley,

TR at 1117, 1126); see Falasco v. Commonwealth Probation

and Parole Board, 521 A.2d 991 (1987)(regarding “‘official

notice”’).

30. Judge Ross testified at the August 1988 hearing that

she had reported the fact, content, and presumed import of

her May 30, 1986 conversation with Justice Larsen, to JIRB

Chairman Judge James Rowley on May 26, 1987, while en

route from the Harrisburg Airport to the JIRB headquarters in

Harrisburg. (Ross, TR at 822-31).

31. Judge Rowley testified, however, that while Judge Ross

had mentioned the article and that Justice Larsen had been

to see her, Judge Ross had not indicated that Justice Larsen

had attempted to influence Judge Ross, and that if she had

indicated that, it would have struck him “‘like bolt of lighten-

ing,” and that he would certainly have remembered it. (Rowley,

TR at 1130). We find Judge Rowley’s denial, rather than Judge

Ross’ assertion, to be credible. Moreover, we note that not only

did she not report the incident to Judge Rowley as alleged,

but she failed to report the incident subsequently at any of the

numerous Board meetings or one-on-one contacts she had with

Judge Rowley prior to her actual first report of the incident to

Board Counsel Robert Keuch in September 1987. (Rowley, TR

at 1110-32, 1034; Ross, TR at 822-25, 830-31, 897-98).

32. On July 8, 1987, a hearing was held in the Estate of

Francis case at which Judge Ross indicated her tentative satis-

faction with Attorney Lampl’s explanation of his conduct in that

case. It does not appear that at that time she suspected Attor-

ney Lamp! of conspiring with Justice Larsen and Attorney

Ashton, to influence her improperly. (EX R-5).

33. We conclude that Judge Ross’ reinterpretation of the

May 30, 1986 meeting as the result of the April 19, 1987 arti-

cle probably did not take its final, settled form until sometime

after the JIRB meeting May 18, 1987, and the July 7, 1987

hearing in the Estate of Francis case.

34. On or about, October 16, 1987, Justice William Hutch-

inson formally resigned his position as Justice of the Penn-

sylvania Supreme Court in order to assume the post of Judge

of the Third Circuit Court of Appeals. His nomination to the

47

Third Circuit post was rumored in the legal press as early as

May 4, 1987. Between June 6, 1987, and June 26, 1987,

reports of confirmation of the pending nomination by aides to

Senators John Heinz and Arlen Specter were published in

major newspapers. The nomination was formally submitted on

June 26, 1987, and was formally confirmed by the United

States Senate on August 7, 1987. We note that during this time

many presidential nominations were not acted upon, and so

until confirmation, the likelihood of a vacancy occurring on our

Supreme Court as the result of a resignation by Justice Hutch-

inson was a matter of prognostication and speculation rather

than certainty. These dates coincide with the timing of Judge

Ross’ reinterpretation of her May 30, 1986 conversation with

Justice Larsen. See Sprague v. Casey, 520 Pa. 38, 50, 550

A.2d 184, 190 (1988). See e.g. “‘Around-the State - Third Cir-

Cuit Picks,’’ Pennsylvania Law Journal Reporter, Vol. X No. 18

at 1 (May 4, 1987)(Senator Heinz’ aide disclosed that Presi-

dent Reagan was planning to appoint State Supreme Court

Justice Hutchinson to a vacant Third Circuit post); ‘Justice

Dept. to Act on Judgeships,” Philadelphia Inquirer, at ___

(June 6, 1987)(Senator Specter confirmed that Justice Hutch-

inson was a likely nominee); ‘Around the State-Judicial

Nominees,”’ Pennsylvania Law Journal Reporter, Vol. X, No.

24, at 1 (June 15, 1987)(Senators Specter & Heinz confirmed

that Justice Hutchinson is nominee); ‘Reagan to Name Two

Pennsylvania Judges to Federal Court,” Allentown Morning

Call, at____ (June 21, 1987)(White House announced that the

President will nominate Justice Hutchinson); “Committee May

Vote August 4 on Hutchinson Nomination,” Pottsville Repub-

lican, at ____ (July 25, 1987)(/Senate-Judiciary Committee to

vote as early as August 4 on Justice Hutchinson’s nomination);

Stoffer, “. . . as high court justice assumes U.S. post,” Pitts-

burgh Post Gazzette, at ____ (Oct. 17, 1987)Hutchinson will

resign and take new seat on same day [Monday, Oct. 19, 1987];

‘‘Around the State - Third Circuit Addition,’”’ Pa.L.J.R. Vol. X,

No. 42 at 1 (Justice Hutchinson was nominated in June, unani-

mously confirmed in August, and sworn in October 19, 1987).

35. In September 1987, Judge Ross made a formal com-

plaint against Justice Larsen to Board Counsel Keuch regard-

ing Justice Larsen’s May 30, 1986 conversation with her. This

was her first formal report of the incident to the JIRB, and

occurred more than fifteen months after the alleged miscon-

duct, and about six months after the April 19, 1987 newspa-

per article. (Ross, TR at 898).

36. On October 8, 1987, two months after Justice Hutchin-

son’s confirmation, days before his formal resignation, and only

one month before Justice Larsen’s scheduled retention elec-

tion, an article appeared on the front page of the Pittsburgh

Post Gazette by Bill Moushey discussing the May 30, 1986 con-

versation between Justice Larsen and Judge Ross, and the

Zdrale land deal. The article suggested that Justice Larsen

had specifically intervened with Judge Ross on behalf of Attor-

ney Lamp! and Attorney Ashton in the Estate of Francis case,

and that Attorney Ashton and Attorney Lamp! had been

involved in Justice Larsen’s ‘‘questionable”’ and ‘‘very favora-

ble’ land purchase from Mr. Zdrale at about the same time.

The article indicated that Justice Larsen was ~ispected of

impropriety, and that Judge Ross had reportec ie matter to

the Justice Department and to “‘at least one official of state

government.”’ The source of the disclosures was not /evealed.

(See Moushey, “‘Larsen asked relief for 'awyers,’’ Pittsburgh

Post Gazette, at 1 (October 8, 1987)).

37. Attorney Lamp! testified that Mr. Moushey had told him

that a member of Judge Ross’ staff was his principal ‘informed

source.”’ At the Board hearings Mr. Moushey claimed statu-

tory privilege and declined to reveal his sources, or to con-

firm or deny Mr. Lampl’s assertions, even though the Board

had ruled the asserted privilege inapplicable. (Lamp! TR at 90,

92 & 133; Moushey TR at 1145-46, 1657-85).

38. At the hearing before this Board, Judge Ross denied

having anything to do with the Moushey article, or knowing

how Moushey received information concerning Justice Lar-

sen’s conversation with her, or her reports of the matter to state

and federal authorities. Judge Ross noted various significant

inaccuracies in the article including the assertion that Justice

Larsen had mentioned Attorney Ashton and Attorney Lamp!

in the May 30, 1986 meeting (which she denied). She also

noted that only $500,000 rather than $2,000,000 dollars (as

indicated in the article) was suspected to have been improperly

taken from the estate. (Ross, TR at 865-67).

49

39. On October 13, 1987, Judge Ross was interviewed by

FBI Agents. We noted the inaccurate information in her report

to the FBI regarding her conversations with Attorney Vaira and

U.S. Attorney Johnson at numbers C-15, C-17, and C-20. We

note that the FBI report also indicates that Judge Ross had

stated, then, that her first report to the JIRB was through Mr.

Keuch and not Judge Rowley as she later testified before the

Board. Interestingly, in a letter to Board Counsel Keuch regard-

ing the FBI report, she noted that the only error in the report

was its reference to the person to whom she reported the inci-

dent, but she made no mention of the errors discussed supra

at numbers C-15, C-17, and C-20. (EX R-1; EX R-1a).

40. On October 27, 1987, following publication of the

Moushey article, Attorney Lampli moved to have Judge Ross

recuse herself as the result of ex parte contacts suggested in

the article. In denying the motion, Judge Ross stated:

‘The Court has no control over what newspaper

writers write about a public record. The opinion

expressed in the article was the opinion of the writer

of the article. The article indicated that this Court,

and properly so, would not comment about that case

nor about the allegations concerning Justice Larsen.

The court is well aware, under the Canons of Judi-

cial Ethics, the court may not, ever, comment to any

newspaper reporter about pending litigation and cer-

tainly the Homer Douglas Francis litigation. This

Court has been careful to preserve the rights of all

parties who appeared before it. | am sure that if the

court had not been so impartial, we would have con-

cluded these matters a long time ago. Your motion

will be denied, Mr. Ashton.”’

(Lampl, TR at 92, 153-54; EX R-3, at 19-20).

41. At the August 1988 hearing in this matter, Judge Ross

gave three reasons for her failure to recuse herself from the

Estate of Francis matter. First, she did not consider communi-

cations between Judge Cosetti, Judge Markovitz, or Justice

Larsen and herself to be “‘ex parte,’’ because she understands

(or at least understood) that term to apply only to conversa-

tions between a Judge and a party or a party’s counsel. (Ross,

TR at 861: see also EX R-3 at 3-22; EX B-10 at 4-20 . She noted

further that she did not feel she had to report Justice Larsen’s

contact with her because that part of the case was no longer

before her. (Ross, TR at 861). Finally, she testified that she

felt that the JIRB secrecy provision required her to keep silent

about the matter since she had reported it to the JIRB. (Ross,

TR at 868-69).

42. Judge Ross also testified that she felt she was

unaffected by her belief that Justice Larsen had attempted to

influence her improperly on behalf of Attorney Lamp! and Attor-

ney Ashton in the Estate of Francis case, and further testified

that she could continue to judge the outstanding matters in

which Attorney Ashton continued to represent Attorney Lamp!

in the Estate of Francis case, fairly and impartially despite the

fact she believed that they had worked together with Justice

Larsen to influence her improperly in that case. (Ross, TR at

870).

43. Although Judge Ross had indicated her satisfaction with

Attorney Lampl’s accounting at a hearing on July 7, 1987, the

opinion she filed in February 29, 1988, severely criticized Attor-

ney Lampl, stating that Attorney Lamp! was guilty of unethi-

cal neglect of the bankruptcy matter, contributing to the

“hemorrhaging” of assets from the estate, but nonetheless

made no formal findings of misconduct by Attorney Lampl. Nei-

ther the February opinion, nor the ruling on the recusal motion,

were reviewed on their merits on appeal to the Superior Court.

(Ex. B-9, Ex B-10, Ex B-62).

44. At the August 31, 1988 hearing, Judge Ross identified

and authenticated handwritten notes which she testified that

she had made contemporaneously with the events indicated

in the notes beginning on May 30, 1$86. (Ross, TR at 981-1001;

EX R-22).

45. Judge Ross’ notes do not purport to relate her conver-

sation with Justice Larsen on May 30, 1986 in its entirety. They

contain no reference to the unrelated matters she testified that

she recalled she and Justice Larsen discussing, and omit refer-

ence to the follow-up call. The notation regarding her call to

Attorney Vaira is squeezed in as an interlineation and incor-

rectly notes that she spoke with him at Cindrich’s (law firm),

51

when in fact she had not. Both the notations regarding her calls

to Attorney Vaira and U.S. Attorney Johnson merely noted the

contact and neither indicated the specific content of the calls

other than that they related to her conversation with Justice

Larsen. The brief characterizations of those calls in her notes

are also inaccurate. The notes contain no entries for her alleged

contacts with Judge Cosetti or Judge Rowley. After a June 9,

1986 entry a long space is left blank with the date 11/10/86

written on the bottom of the following page with the beginning

of a new entry, scribbled out. Significantly, the notes do not

contain reference to the critical alleged statements, ‘‘Botula

is the one”’ or ‘‘Go after Botula,’’ which she testified that she

recalled. The diary notes provide no corroborative support for

Judge Ross’s testimony; the inconsistencies noted, in fact,

undermined her credibility to some extent. (EX R-22).

46. On August 31, 1988, Judge Ross testified to this Board

that she ‘‘had no present desire’ to go onto the Supreme

Court, that she did not have a desire to go onto the Supreme

Court in 1986 or 1987, and that she had decided to run in early

1988, because ‘‘the vacancy was suddenly certified”’ and she

had ‘‘as good a chance as anyone else.’’ (Ross, TR at

1005-06). Under cross-examination on July 10, 1989, Judge

Ross conceded:

Q. Did you contemplate a race for the Supreme Court

at the time that you made known your charges or

accusations against Justice Larsen, to the Judicial

Inquiry and Review Board?

A. First, | don’t make accusations. | reported an inci-

dent to the Board which | felt was connected with

the sale of the real estate.

Q. I'll ask you, at the time that you reported that

which had, which later resulted in the charges, I'll

put it that way, did you contemplate a race for the

Supreme Court?

A. | don’t think at that time | was thinking about it.

| have always had a hankering to go to the Supreme

52

Court, but | don’t think | had done anything that really

was—

Q. All | have asked is if you had—

A. Just a latent desire, | would say, all right?

(Ross, TR at 34-35). (Emphasis added).

47. Judge Ross’ testimony was challenged in the following

additional respects throughout cross-examination:

a. Judge Ross testified she accepted a ride with Jus-

tice Larsen from the Pittsburgh airport in 1985, and

that she could place the date based upon her

recollection that Justice Larsen had suggested that

she run for one of the Superior Court vacancies avail-

able in 1985. However, Justice Larsen denied ever

having made such a suggestion, and Mrs. Roberts

indicated that by checking Justice Larsen’s calen-

dar and files, she was fairly certain that she had given

Justice Larsen and Judge Ross rides home from the

Pittsburgh airport on September 19, 1984, but not

in 1985. (Ross, TR at 901-02; Roberts, TR at 1403-05;

Larsen, TR at 2538, 2686).

b. Judge Ross first indicated that she did not recall

her conversation with Justice Larsen in the car, but

was certain she would not have brought up her Baby

Girl D adoption case which was pending in the

Superior Court and virtually certain to be appealed

to the Supreme Court. On further cross-examination,

however, she conceded that she may have discussed

work on hearings for new adoption legisiation and

a possible grand jury adoption investigation, but not

the Baby Girl D case itself. (Ross, TR at 905, 920-22).

c. Judge Ross testified that Justice Larsen was

dropped off first and that she was invited in to see

his condominium. Justice Larsen and Mrs. Roberts

denied that Judge Ross was invited into Justice

53

Larsen’s condominium. (Ross, TR at 805; Robert,

at 1403-05; Larsen, TR at 2535-39).

d. Judge Ross testified that she was dropped off

downtown. Mrs. Roberts recalled that she drove

Judge Ross to her home and complimented Judge

_Ross on her “‘lovely flowers along the walkway.’

Judge Ross denied any memory of the compliment,

but did not deny the existence of the flowers Mrs.

Roberts described. (Ross, TR at %05-06, 814-16;

Roberts, TR at 1403-05; Larsen, fR at 2535-39).

e. Judge Ross acknowledged that she dropped off

a draft adoption statute, a memorandum, and hear-

ing testimony to Justice Larsen’s chambers, but

insisted that they did not relate to her ‘‘Baby Girl D’’

adoption case. When confronted with Mrs. Robert’s

statement that the papers had been marked “‘Baby

Girl D,’’ Judge Ross suggested that her secretary

must have not known what to caption the specimen

documents and must have labeled them ‘“‘Baby Girl

D,”’ coincidentally. (Ross, TR at 905-20; Roberts, TR

at 1405-09, 1425; EX B-41A; /n re Baby Girl D, 512

Pa. 449, 517 A.2d 925 (1986)).

f. Judge Ross testified that she did not recall receiv-

ing a letter from Attorney Schuchert asking Judge

Ross not to report Attorney Jon Botula’s alleged mis-

conduct to the Disciplinary Board. However, Judge

Ross’ own diary notes refer to such a letter. (Ross,

TR at 991-92; EX R-22).

g. Judge Ross denied writing to Justice John P. Fla-

herty on September 2, 1986. When confronted with

a copy of her letter, she stated that she ‘‘had a bad

memory.”’ (Ross, TR at 977-79; EX R-19).

h. When confronted with a copy of Attorney Lampl’s

August 18, 1988 exceptions in the Estate of Francis

case at the August 31, 1988 Board Hearing, Judge

Ross denied she had ever received them. Her denial

was contradicted, however, by her own order deny-

ing those exceptions entered on August 19, 1988,

less than two weeks earlier. (Ross, TR at 969-71;

EX R-17; EX R-18).

48. Based on the foregoing, we find that:

Justice Larsen, without any apparent improper motive,

improperly provided Judge Ross with a prohibited ex parte tip

concerning possible bankruptcy fraud in a case over which

Judge Ross was then presiding.

IV. DISCUSSION: CHARGE |

Charge | involves an alleged improper ex parte communi-

cation by Justice Larsen to Judge Ross regarding the Estate

of Francis case. In discussing the findings relating to this

charge we must first determine what we know about what

occurred, and then determine its legal significance.

Both Justice Larsen and Judge Ross appear to be convinced

that their versions of the May 30, 1986 meeting are complete

and accurate; each believes that the other’s version is a will-

ful fabrication. Neither Justice Larsen’s version, nor Judge

Ross’ version, however, can be accepted as complete or

accurate.

Each of the witnesses, the principal parties as well as the

witnesses to relevant subsequent events, presented testimony

demonstrably flawed by one or more of Wellman’s “innocent

fallacies of testimony.”’ The witnesses’ memories of relevant

conversations evidenced varying degrees of deterioration and

distortion as the result of their initial levels of inattention to

details of the conversations, the relative insignificances of the

details of the conversations at the time they occurred, the press

of innumerable other weighty matters on their minds during

the interim, sources of false interpolations, and the deleteri-

ous effects of the considerable period of time which elapsed

between the events to be recalled and the request by this Board

that the witnesses attempt to recall those events. Most of the

witnesses recognized the potential for such fallacies of testi-

55

mony and attempted to disclose and discount for them.

United States Attorney Alan Johnson directly and forthrightly

acknowledged that the press of events in his life and the pas-

sage of years had erased all independent memory of his con-

versation with Judge Ross by the time he testified before this

Board in this matter. Judge Cosetti, Judge Rowley, and Attor-

ney Vaira each acknowledged that they retained only the out-

lines of their past conversations with Judge Ross which were

the focus of their testimony in this matter.

Even so, risks remain in reviewing their qualified testimony.

The innocent interpolation of false references to ‘‘mob figures”’

and ‘‘narcotics’’ into Attorney Vaira’s memory of his conver-

sation with Judge Ross on June 5, 1986, in his interview with

Board investigators on November 9, 1987 (which he

acknowledged in his testimony to this Board), underscores the

tenuous ground upon which each of these witness’ testimony

was founded, as well as the manifest opportunity for innocent

fallacies of testimony to distort the actual facts in the witnesses’

subsequent reports.

Both Justice Larsen and Judge Ross, on the other hand,

Claimed far more for their respective memories of the relevant

events than the record before this Board could sustain. In

rejecting portions of their testimony, however, we expressly

reject their reciprocal invitations to find that the other is lying

and committing willful perjury. To the contrary, we find that

both are respected jurists with excellent reputations for hon-

esty and integrity, who appear to be sincerely mistaken in por-

tions of their recollections of the relevant events. We note that

there is abundant cause to believe that innocent fallacies of

testimony, rather than willful perjury, account for the dramatic

differences in their accounts of their conversation during their

May 30, 1986 meeting.

Initially we must concede that even after extensive and

detailed investigation, there is no clear and convincing evi-

dence, to establish the precise context, content, and manner

of delivery of Justice Larsen’s comments to Judge Ross dur-

ing the May 30, 1986 meeting. Nonetheless, we find sufficient

Clear and convincing evidence that Justice Larsen stated some-

thing to the effect that, two men on the street had told him that

in the Estate of Francis case, Jon Botula took all the money

56

DL a a

Ae ae ADT Chm TRE ee te ae eS Allee pene ean

Sinipas Seti te»: "

and used it to buy a condominium in Florida. We reject, as

an inaccurate interpolation, Judge Ross’ further testimony that

Justice Larsen had followed that statemeni with a further direc-

tive to the effect that ‘‘Botula’s the one,”’ ‘‘you go after Botula.”’

The reason for rejecting part of Justice Larsen’s denial and

part of Judge Ross’ accusation is the same - neither are con-

sistent with the available corroborative evidence from credi-

ble and disinterested witnesses. We will explain the partial

rejections of Justice Larsen’s and Judge Ross’ testimony

separately.

Justice Larsen’s flat denial of any knowledge of or comment

regarding the Estate of Francis case must be rejected, despite

his excellent character for both truthfulness and integrity,

because it is clearly and convincingly rebutted by the portion

of Judge Ross’ testimony which has been corroborated by

Attorney Vaira, and United States Attorney Johnson. Both tes-

tified that Judge Ross had reported to them shortly after the

May 30, 1986 meeting that Justice Larsen had provided her

with a tip in the Estate of Francis case concerning possible

bankruptcy fraud by Jon Botula. The testimony of U.S. Attor-

ney Johnson and Attorney Vaira thus confirmed that Judge

Ross had made prior partially consistent statements near the

time of the May 30, 1986 meeting.

It is true that Judge Ross was the sole source for both of

the corroborating witness’ testimony, thus, undermining the

value of their corroboration evidence in that respect, as mere

repetition does not corroborate. However, we find it significant

that the reports were contemporaneous with the events and

both the timing and tenor of these initial reports by Judge Ross

lacked even arguable political implications, as they were made

far in advance of Justice Larsen’s retention election, and were

not in any way accusatory toward Justice Larsen. Thus, the

prior partially consistent statement provides significant, albeit

partial, corroboration by at least partially rebutting challenges

to Judge Ross’ testimony on grounds of post-event memory

decay and distortion, and political bias.

Moreover, there are several reasons to believe that Justice

Larsen’s sincere and adamant denials of the portion of Judge

Ross’ account we find proved were caused by innocent falla-

cies in his testimony. First, a substantial lapse in time occurred

57

before Justice Larsen ever had cause to recall his May 30, 1986

conversation with Judge Ross (in this regard we note that U.S.

Attorney Johnson found, after only a slightly longer lapse in

time, that he had no independent recollection of his conver-

sation with Judge Ross which had occurred nine days after

Justice Larsen’s conversation with Judge Ross). Second, if

the remark was made to Judge Ross as merely a “‘tip’’ (as we

find), then Justice Larsen would have had little or no reason

to have been atteniive to that detail during or immediately after

the May 30, 1986 meeting. Hence, Justice Larsen would have

no reason to recail the tip by the time accusations were raised

concerning that conversation a year and one half later. Third,

when the accusations were first made, the corroborated remark

was lumped together with the uncorroborated and far more

accusatory remarks, ‘‘Botula’s the one,”’ ‘“‘you go after Bot-

ula.”” Having forgotten the first remark, and knowing that he

had never made the other far more culpable remarks, it is not

unlikely that Justice Larsen would have convinced himself that

the entire allegatior was patently false, though part of it was

true.

In this regard, we note the following cogent observations of

Francis Wellman:

Every mind is attentive to what it sees or hears, more

or less, according to circumstances. It is in the region

of hazy impressions that the imagination is wont to

get in its most dangerous work. It thus appears that

it is partly owing to this variation in intensity of atten-

tion that different individuals get such contradictory

ideas of the same occurrence or conversation. When

we add to this variance in the degree of attention,

the variance, just explained, in the individual interpre-

tation or coloring of the physical sensation, we have

still further explanation of why men so often differ

in what they think they have seen and heard.

Still another most important factor and itself the

source of an enormous number of “‘fallacies of tes-

timony”’ is memory. We are accustomed to speak

of memory as if it consisted in an exact reproduction

A Re

Eee Oe) ee eek

a aa a

habe ee es

of past states of consciousness, yet experience is

continually showing us that this reproduction is very

often inexact, though the modifications which the

“trace” has undergone in the interval. Sometimes

the trace has been partially obliterated; and what

remains may serve to give a very erroneous (beca

imperfect) view of the occurrence. When it is one'in

which our own feelings are interested, we are

extremely apt to lose sight of what goes against

them, so that the representation given by memory

is altogether one-sided. This is continually demon-

strated by the entire dissimilarity of the accounts of

the same occurrence or conversation which is often

given by two or more parties concerned in it, even

when the matter is fresh in their minds, and they are

honestly desirous of telling the truth. This diversity

will usually become still more pronounced with the

lapse of time, the trace becoming gradually but

unconsciously modified by the habitual course of

thought and feeling, so that when it is so acted upon

after a lengthened interval as to bring up a reminis-

cence of the original occurrence, that reminiscence

really represents, not the original occurrence, but the

modified trace of it.

Weliman, supra, at 142-44. (Emphasis added). Such appears

to be the case here. This potential for an innocent fallacy of

testimony on Justice Larsen’s part provides us with a satis-

factory explanation of how the adamant denial of a man known

to be truthful could nonetheless be wrong. We note that we

suggest subconscious paths to those fallacies, and not con-

scious ones.

Judge Ross’ testimony that Justice Larsen attempted to

direct her decision in Estate of Francis by stating that ‘‘Bot-

ula’s the one,” you go after Botula,”’ likewise must be rejected

because it is clearly and convincingly rebutted by the portion

of Justice Larsen’s denial which is corroborated by the con-

tent and tenor of Judge Ross’ own initial reports of the con-

versation to Attorney Vaira and United States Attorney

Johnson. It is also rebutted by Judge Ross’ course of conduct

59

following the May 30, 1986 meeting including her continued

courtesy toward Justice Larsen, and her failure to promptly

report what would have been egregious misconduct to either

the parties and her colleagues on the Estate of Francis case

or to this Board. Had Justice Larsen actually attempted to

importune Judge Ross so brazenly, we have no doubt that as

an ethical jurist and as a then serving member of the JIRB,

she would not have hesitated an instant in making a prompt

formal complaint to this Board; her failure to do so significantly

undermines her credibility on this point. Finally, it is further

rebutted by the fact that her original characterization of the

May 30, 1986 comments by Justice Larsen as a “‘tip’’ was not

recharacterized as an attempt to influence her improperly until

after she read the April 19, 1987 article suggesting miscon-

duct by Justice Larsen regarding the Fairfield Township Land

purchase, almost a full year after the May 30, 1986 meeting.

Similarly, we reject her adamant denial that Justice Larsen

discussed complaints raised by Judge Zavarella and others

regarding her personal and judicial conduct during the May

30, 1986 meeting. Justice Larsen’s clear testimony on this

point, his reputation for truthfulness, his prior similar conduct

regarding other judges, and the corroborative evidence sup-

plied by Judge Zavarella and Attorney Lampi, all combine to

clearly and convincingly rebut her adamant denials.

Moreover, as with Justice Larsen, there are various avenues

by which Judge Ross’ testimony in this respect may have

become innocently mistaken. Again, there is the deleterious

effect of time. Judge Ross’ contemporaneous prior partially

consistent statements to United States Attorney Johnson and

Attorney Vaira, indicated that Justice Larsen had provided her

with a tip. Her testimony after reading the suggestive April 19,

1987 news article, however, added the alleged rejoinder ‘‘Bot-

ula’s the one,”’ “‘you go after Botula,’”’ which was not included

in earlier reports, and which involved a fundamental change

in the nature of Justice Larsen’s alleged conduct. Once this

false interpolation occurred, Judge Ross quite naturally would

have become convinced of her duty to bring Justice Larsen

to justice via JIRB proceedings; thus, explaining her first,

belated report to this Board in October 1987, a year and one

half after the May 30, 1986 conversation with Justice Larsen.

Moreover, it is likely that her status as key prosecution wit-

i ness, and as a lightening rod for counteraccusations, nega-

: tive aspersions, and rigorous cross-examination may have

P increased both her indignation and her false certainty regard-

5 ing these matters.

: in this regard, we note the following equally cogent obser-

q vations of Francis Wellman:

: Not only does our idea of the past become inexact

by the mere decay and disappearance of essential

features; it becomes positively incorrect through the

gradual incorporation of elements that do not

properly belong to it. Sometimes it is easy to see how

these extraneous ideas become imported into our

mental representation of a past event. Suppose, for

example, that a man has lost a valuable scarf-pin.

His wife suggests that a particular servant, whose

reputation does not stand too high, has stolen it.

When he afterwards recalls the loss, the chances are

that he will confuse the fact with the conjecture

attached to it, and say he remembers that this par-

ticular servant did steal the pin. Thus the past activity

of imagination serves to corrupt and partially falsify

recollections that have a genuine basis of fact.

ei NO ARE oS RN Sg era a

PASE DTS SON EO,

Witnesses in court are almost always favorable to

the party who calls them, and this feeling induces

them to conceal some facts and to color others which

: might, in their opinion, be injurious to the side for

which they give their testimony. This partisanship in

the witness-box is most fatal to fair evidence; and

when we ado to the partisanship of the witness and

: similar leaning of the lawyer who is conducting the

* examination, it is easy to produce evidence that

varies very widely from the exact truth.

eR Parr ar tes (dei atic

There is still another class of persons who would not

become witnesses for either side unless they felt that

some wrong or injustice had been done to one of the

parties, and thus to become a witness for the injured

61

party seems to them to be a vindication of the right.

Such witnesses allow their feelings to become

enlisted in what they believe to be a cause of right-

eousness, and this in turn enlists their sympathy and

feelings and prompts them to color their testimony

as in the case of those influenced by the other

_motives already spoken of.

Wellman, supra, ai 146, 150, 152. (Emphasis added, foot-

notes omitted). Such appears to have been the case here;

though we again in no way suggest that either post-event dis-

tortion, partisanship, or indignation played anything more than

a subconscsious role in coloring her testimony.

In reaching our conclusion that part of Justice Larsen’s tes-

timony and part of Judge Ross’ testimony must be rejected,

we specifically reject suggestions of improper motives on the

part of Justice Larsen and Judge Ross respectively. We shall

deal with these suggested motives briefly.

It was suggested that Justice Larsen was motivated to

attempt to influence Judge Ross in order to deflect attention

from Attorney Lampl’s conduct in the Estate of Francis case,

in return for Attorney Ashton’s involvement in Justice Larsen’s

favorable land purchase from Mr. Zdrale (whom both Attorney

Ashton and Attorney Lampi had represented). We reject this

suggested motivation for four reasons. First, the record re-

veals that Attorney Ashton, Attorney Lampl, and Judge Ross,

all agree that at the time of the Fairfield Township Land deal

and the May 30, 1986 meeting there was no reason to believe

that there was any need for Justice Larsen, or anyone else,

to intervene on Attorney Lampl’s behalf. Second, under the

circumstances presented, a tip implicating misconduct by Attor-

ney Botula would have had negligible, if any, effect of excul-

pating Attorney Lampli, Third, Attorney Ashton initiated

discussions regarding the potential sale prior to the issuance

of a rule to show cause in the Estate of Fraricis case, and even-

tually, actively opposed the favorable land deal, specifically

advising Mr. Zdrale not to go through with it. Finally, the asser-

tion is wholly inconsistent with Justice Larsen’s excellent repu-

tation as an ethical jurist. Hence, Justice Larsen had no reason

to intervene on Attorney Lampl’s behalf and had nothing to

62

Per ee ee

repay Attorney Ashton for doing; and, we have no reason to

believe Justice Larsen would intervene improperly on Attor-

ney Lampl’s behalf, even if the motivations alleged had existed.

Thus, we reject the suggestion of an improper guid pro quo

motive for Justice Larsen to attempt to influence Judge Ross

on Attorney Lampl’s behalf.

It was suggested that Judge Ross was motivated to raise

false charges against Justice Larsen for political gain, both

by currying favor with Justice Flaherty, and by enhancing her

own chances of ascending to a seat on our Supreme Court.

We shall address these suggestions briefly, separately.

There is not even a scintilla of evidence to support the sug-

gestion that Judge Ross brought charges against Justice Lar-

sen to curry favor with Justice Flaherty. We reject that

suggestion entirely.

it is true that there was a temporal overlap between Justice

Hutchinson’s vacancy, Justice Larsen’s retention election, and

Judge Ross’ re-evaluation of Justice Larsen’s statements in

the fall of 1987, more than a year and one half after the May

30, 1986 meeting. It is also true that Judge Ross harbors an

acknowledged ambition to serve as a Justice on our Supreme

Court. Nonetheless, it is apparent that the April 19, 1987 news

article motivated her re-assessment of the nature and import

of Justice Larsen’s statements on May 30, 1986, and that the

imputation of a political motive is unnecessary to explain the

part of her testimony which we reject.

The question, then, is whether the ‘‘tip” provided by Jus-

tice Larsen to Judge Ross on May 30, 1986 constituted mis-

conduct which would warrant a recommendation of formal

discipline to our Supreme Court. We find that such a tip vio-

lates the rule forbidding all attorneys (including judges and

justices) to comrunicate with a judge regarding a case, out-

side of the presence of one or more of the parties or their attor-

neys, while that case is pending before that judge, and that

a recommendation of discipline would seem appropriate

despite the absence of any apparent improper motive for the

improper ex parte communication.

The Respondent was charged herein with violating Canons

1, 2, and 3(A)(4) of the Code of Judicial Conduct.

63

Canon 1 provides:

A JUDGE SHOULD UPHOLD THE INTEGRITY

AND INDEPENDENCE OF THE JUDICIARY.

An indenandan and hartorabie judiciary is indispens-

_able to justice in our society. A judge should partici-

pate in establishing, maintaining, and enforcing, and

should himself observe, high standards of conduct

so that the integrity and independence of the judici-

ary may be preserved. The provisions of this Code

should be construed and applied to further that objec-

tive.

Canon 2 provides:

A JUDGE SHOULD AVOID IMPROPRIETY

AND THE APPEARANCE OF IMPROPRIETY

IN ALL HIS ACTIVITIES.

A. A judge should respect and comply with the law

and should conduct himself at all times in a manner

that promotes public confidence in the integrity and

impartiality of the judiciary.

B. A judge should not allow his family, social, or other

relationships to influence his judicial conduct or judg-

ment. He should not lend the prestige of his office

to advance the private interests of others; nor should

he convey or,

knowingly permit others to convey the impression

that they are in a special position to influence him.

He should not testify ow as a character

witness.

Canon 3 provides.:

A Judge Should Perform the Duties

of His Office impartially and Diligently

oS iy M+ ee +

A. Adjudicative Responsibilities . . -

(4) A judge should accord to every person who is

legally interested in a proceeding, or his lawyer, full

right to be heard according to law, and except as

authorized by faw, must not consider ex parte com-

munications concerning a pending proceeding.

Canon 1 is primarily a statement of purpose and rule of con-

struction, rather than a separate rule of conduct. It requires

that each of the other Canons be construed in accordance with

the Code’s fundamental purpose of ensuring both the inde-

pendence and the integrity of the judiciary. To the extent Canon

1 has been construed to set forth independent rules of con-

duct, we find none of those rules implicated by Justice Lar-

sen’s alleged tip to Judge Ross. See Lawyers Manual on

Professional Conduct, §2101 (ABA/BNA 1985); cf. Sprague v.

Waller, 22 D & C 3d 564, 592 (Pa.Ct.Cm.PI. 1982). Canon 1

is inapplicable here except in providing a gloss on the intent

of the other more specific provisions.

Any perceived applicability of Canon 3(A)(4) to this case is

wholly illusory. Indeed, Canon 3(A)(4) by its express terms

relates to Judge Ross’ duties and obligations in the scenarios

set forth in the allegations. Under Canon 3(A)(4) any judge

presiding in a case has an obligation not to consider ex parte

communications such as those which Justice Larsen was

alleged to have provided Judge Ross. Canon 3(A)(4) is inap-

plicable here.

Canon 2 is the only provision cited in the charge which

applies. Ex parte communications with a judge regarding a

case over which that judge is presiding may give rise to an

appearance of impropriety which may undermine public con-

fidence in the judiciary. Whether a communication will give

rise to such improper appearances, however, will depend upon

the context, content and manner of the ex parte communica-

tion. See generally Markey, The Delicate Dichotomies of Judi-

cial Ethics, 101 FRD 373, 373-89 (1984); Rehnquist, Sense and

Nonsense About Judicial Ethics, 28 The Record 694, 694-713

(1973).

While this issue has not been addressed in any of the

published opinions our Supreme Court has issued on judicial

ethics matters, it is clear that an ex parte communication by

one member of the judiciary to another member of the judici-

ary may constitute censurable misconduct in Pennsylvania.

In 1974, the appearance of impropriety which arose when one

district justice called another district justice, asked the district

justice to give a friend he identified a ‘‘fair trial,’’ and then

proceeded to offer the district justice two tickets to a Pittsburgh

Steelers football game—as a “‘favor’’ to the district justice, was

found to constitute censurable misconduct by our Supreme

Court. See in re Regan, No. 36 JIRB Dkt. 1974, unreported

(Pa. 1974), digested in Judicial Discipline and Disability Digest:

1962-1978, at 305 (Rossembaum ed. 1979).

Other jurisdictions have likewise held that an ex parte com-

munication by a judge to another judge regarding a case pend-

ing before the second judge may constitute censurable judicial

misconduct. See e.g. in re Edwards, 501 N.Y.S.2d 16, 492

N.E.2d 124 (1986)(judge publicly censured for calling Magis-

trate identifying self as a judge, and inquiring as to how to settle

his son’s traffic violation case); Matter of Harned, 357 N.W.2d

300 (lowa 1984)(impulsive attempt by district justice to have

another district justice dismiss her daughter’s speeding ticket

warrant a four day suspension, dissent would merely have rep-

rimanded); Matter of Murray, 458 A.2d 116 (N.J. 1983)(muni-

cipal judge publicly reprimanded for ex parte communication

to second municipal judge attempting to gain special treatment

for former client’s daughter); Roberts v. Commission on Judi-

cial Performance, 661 P.2d 1064 (Cal. 1983)trial judge’s

improper ex parte communication with an appeals court judge,

and other conduct, warranted public censure); Matter of Cun-

ningham, 442 N.E.2d 435 (N.Y. 1982)(trial judge’s ex parte let-

ter to appeals court judge warranted public censure); Dixon

v. State Com’n on Judicial Conduct 393 N.E.2d 441 (N.Y.

1979\district justice admonished for asking for special treat-

ment for a friend, mitigating circumstances noted).

While all ex parte communications with judges regarding

cases pending before those judges, may be equally prohibited,

all ex parte communications are not equally sanctionable.

indeed, we find that there is spectrum of culpability with respect

to ex parte communications which ranges from the plainly

66

Pe Se

criminally culpable, through the injudicious, to good faith errors,

and finally to truly innocent and innocuous ex parte remarks.

The magnitude of the misconduct will depend upon the con-

text, content, and manner of delivery of the ex parte

communication.

In light of the dearth of case law from our jurisdiction, we

turn to cases from other jurisdictions to illustrate this continuum

of culpability: We emphasize, however, that these cases are

cited for illustrative purposes only.

At the highest level of culpability are ex parte communica-

tions for criminal or other clearly improper motives. In Florida

Bar v. McCain, 361 So.2d 700 (Fla. 1978), a former Supreme

Court Justice who had resigned under a cloud of allegations

of misconduct was disbarred based upon multiple instances

of misconduct while a Supreme Court Justice which included

two admitted attempts to improperly influence lower court

judges to rule in favor of his political/financial supporters by

ex parte communication. One case involved an appeal by a

union official from a criminal bribery conviction, the second

case involved a pending petition for attorney's fees.

Justice McCain’s culpability as to each of the atternpts to

influence lower court judges improperly were proved beyond

any doubt by his own unequivocal confessions to both the con-

duct and the improper motives. Such is not even vaguely the

case here.

We have specifically found that there was no need to attempt

to influence Judge Ross on Attorney Lamp!’s behalf, there was

no motive to attempt to influence Judge Ross on Attorney

Lampl’s behalf, and Justice Larsen in fact did not attempt to

influence Judge Ross on Attorney Lampl’s behalf. Moreover,

the absence of evidence of an improper motive, and Justice

Larsen’s excellent reputation as an ethical jurist warrant an

inference that the “‘tip’’ was what it appeared to be, i.e. merely

a “tip,” albeit a tip improperly communicated by prohibitted

ex parte communication. Hence, Florida Bar v. McCain, supra,

is plainly inapposite.

At the middle level of culpability stand plainly injudicious ex

parte communications which are not made for clearly improper

motives. In In re DiLorenzo, 330 N.Y.S.2d 394 (1972), a recom-

mendation of removal was rejected, and public censure was

67

substituted as the appropriate sanction for the appearance of

impropriety which arose when a judge arranged to meet and

confer with counsel in charge of a Waterfront Commission

investigation involving a close friend of the judge. The court

found that the judge’s conduct was “‘injudicious”’ in that an

appearance of impropriety arose as the result of the fact that:

the judge did not know the commission counsel; the judge was

a friend of the target of the investigation; the judge arranged

for the meeting through an intermediary; and, the judge spe-

Cifically initiated a discussion of the investigation with the com-

mission counsel. The court agreed, however, that, in light of

the direct and irresolvable conflict in the evidence regarding

the content and manner of the conversation, there was not

clear and convincing evidence that the Judge had tried to

influence the investigation improperly, as opposed to merely

attempting to discover its scope and status.

In re DiLorenzo involves conduct distinguishable from that

involved here. In /n re DiLorenzo, an appearance of impropri-

ety to a reasonable person arose from the very fact of the meet-

ing, regardless of the contested content of their discussion.

Here, the meeting itself was entirely innocuous and unobjec-

tionable absent reference to the contested context, content,

and manner of delivery of the conversation between Justice

Larsen and Judge Ross; judges and justices often meet and

converse on a broad range of topics, such meetings, by them-

selves, raise no untoward appearances.5 Moreover, the instant

5 We have found that although Justice Larsen provided Judge Ross with

the prohibited ex parte tip, he also discusses with her various complaints

which had been circulating regarding her personal and professional con-

duct. This portion of the May 30, 1986 meeting was entirely proper.

A 1966 law review on judicial discipline notes:

It is common for judges to discuss the performance of their colleagues,

particularly those within their court, and subsequently to make infor-

mal approaches aimed at curing any defect in performance. The judges

spoken to are usually responsive and will often correct a fault without

anything further having to be said or done. Judges on higher courts

will sometimes speak to lower court judges — even in the absence

of a legally recognized supervisory power.

Note, Remedies for Judicial Misconduct and Disability, 41 NYULR 149, 167-8

68

case involved an ex parte tip apparently made to aid a judge

in ferreting out potential bankruptcy fraud in a pending case,

while In re DiLorenzo involved, at best, an informational fish-

ing expedition by a friend of the target of the commission attor-

ney’s investigation into possible criminal misconduct.

On the other hand, unlike DiLorenzo, the evidence here indi-

cates that Justice Larsen provided factual information via the

ex parte communication which (though presented in terms of

anonymously or confidentially received hearsay information),

nonetheless, was intended apparently to trigger at least fur-

ther inquiry by Judge Ross. Moreover, unlike the situation in

DiLorenzo, Justice Larsen stood in a position of authority over

Judge Ross, which could exacerbate the general appearances

of impropriety arising from the ex parte nature of the tip itself.

At the last level of culpable ex parte communications, are

those improperly provided for unquestionably proper motives.

in In re Emmett, 300 So.2d 435 (Ala. 1974), the Alabama

Supreme Court reversed an order of censure entered against

a trial court judge who had sent ex parte letters to appeals court

judges explaining why he imposed high bail in particular cases

and why he thought that they should affirm his orders. Signifi-

cantly, the letters contained a statement by the judge that he

had received an anonymous tip by phone that one of the defen-

dants intended to flee the state if indicted, and had been given

a financial inducement to do so. That information was plainly

relevant to the merits of the bail decisions, i.e. the likelihood

of flight. The court found that because the letter was not sent

(1966), (Emphasis added). Richard McDevitt, former Executive Director of

the JIRB, wrote in 1974:

To date, | have gone to the Administrative Judge or President

Judge and had him warn the respondent, or, better still, have

one or both of the appeilate Judges on our Board administer

a strong warning.

McDevitt, Judicial Disability and Removal Commissions, 45 Pa.B.A.Q. 118,

119 (1974). While informal admonitions, without directive of the Supreme

Court, may no longer be imposed by the JIRB (See Matter of XYP, supra),

the foregoing authorities confirm the still valid practice of judges and justices

informally policing themselves. Cf. Goodheart V. Casey, supra, 565 A.2d at

764. (per Nix, C.J.; Flaherty, J.., joins; McDermott, J., joins as to this issue)

(colleagues have a duty to suggest recusal in some cases).

69

LK Te

to the parties or counsel it was an ex parte communication,

and therefore, was technically improper. However, the court

found further that while the letters were technically improper

ex parte communications, the Judge had sent them in good

faith, without improper intent, and therefore censure was not

appropriate under Alabama law.

Emmett too, however, is distinguishable. The improper ex

parte communication in Emmett went from the trial court judge

to several appeals court judges, rather than as here from a

Supreme Court Justice to a trial court judge. Moreover, the

ex parte communication in Emmett was contained in a letter;

thus, reducing the potential for appearances of impropriety by

providing a certain record of the information conveyed. Here,

the tip was conveyed orally in a setting where there were no

witnesses to confirm the content of the tip.

We conclude that Justice Larsen’s conduct was improper,

regardless of his motivation. If an appellate court judge or jus-

tice learns information he or she feels should be communi-

cated to a trial court, it is incumbent upon the appeals court

judge or justice to communicate that matter to counsel

involved, or to the court via accepted channels of communi-

cation, e.g. affidavits, depositions, or testimony. Ex parte com-

munication of a ‘‘tip’’ based on hearsay (or any other source)

to a trial judge, regarding a case then pending before that —

judge, is prohibited.

The reason for the prohibitation of such ex parte communi-

cations is illustrated here. Because the tip was presented in

terms of having been provided by an anonymous or confiden-

tial source, and because it was communicated ex parte, rather

than through proper channels, the tip raised an appearance

of impropriety regarding the need and/or motive for com-

municating the tip ex parte, notwithstanding Justice Larsen’s

excellent reputation as a truthful, ethical, and respected jurist.

The appearance of impropriety raised by the improper ex

parte communication here, was exacerbated further by the fact

that Justice Larsen stood in a position of authority over Judge

Ross. The status of the party making the ex parte communi-

cation may affect the recipient’s response, whether or not such

an effect was intended.

Compelling evidence was presented regarding Justice

70

canine

Larsen’s excellent reputation as a truthful, ethical, and com-

petent jurist. While this evidence sheds favorable light on the

ambiguities and conflicts in the evidence presented, the fact

of the improper ex parte tip remains.

Hence we conclude that Justice Larsen violated Canon 2

by providing a prohibited ex parte “tip” concerning of the Estate

of Francis case to Judge Ross, when that case was pending

before Judge Ross. We find that the conduct warrants discipli-

nary action despite the absence of an improper motive,

because the conduct by itself raised an appearance of impropri-

ety, which could undermine public confidence in our judiciary.

71

In The

Supreme Court of Pennsplbania

IN THE MATTER OF

THE HONORABLE ROLF LARSEN,

ASSOCIATE JUSTICE,

PENNSYLVANIA SUPREME COURT

No. 155

J.1.R.B. Docket

October 14, 1992

REPRIMAND

To: Justice Larsen

On this date, a per curiam order was entered in the discipli-

nary proceeding captioned as /n the matter of the Honorable

Rolf Larsen, Associate Justice, Pennsylvania Supreme Court,

JIRB Docket Number 155. We have accepted the report and

recommendation of Judge Joseph M. James, Judge Jess

Juliante, Judge John T. J. Kelly, Jr., and Judge Frank J. Mon-

temuro after an independent review of the record of the

proceeding before the Judicial Inquiry and Review Board

(JIRB). We have concluded that Charge | was supported by

clear and convincing evidence which established that Canon 2

of the Code of Judicial Conduct was violated.

Canon 2 states that, ‘‘A judge should avoid impropriety and

the appearance of impropriety in all his activities.”” Conduct

that would not be untoward if undertaken by an ordinary citi-

zen may subject a jurist to discipline. Indeed, the commen-

tary to Canon 2 notes that a jurist ‘*. . .must therefore accept

72

i aii

restrictions on his conduct that might be viewed as burden-

some by the ordinary citizen and should do so freely and will-

ingly.”’ It is a burden that you have borne well during your

lengthy service to the Commonwealth, and it is a burden that

{ you must accept today.

A jurist must avoid even the appearance of impropriety to

champion public confidence in the integrity and impartiality

of the judiciary. No improper motive has been imputed to your

conduct, but because the conduct by itself created an appear-

ance of impropriety, we must impose the sanction of this pub-

lic reprimand.

TRUE COPY FROM RECORD

Attest: January 29, 1993

| CHARLES W. JOHNS, ESQUIRE

Prothonotary, Supreme Court of

Pennsylvania

73

IN THE MATTER OF THE HONORABLE

ROLF LARSEN, ASSOCIATE JUSTICE,

PENNSYLVANIA SUPREME COURT

BEFORE THE JUDICIAL INQUIRY

AND REVIEW BOARD

No. 140 JIRB Dkt. 1987

(Complaint Dkt. No. 87-156)

REPORT OF THE JIRB

TO THE SUPREME COURT OF PENNSYLVANIA

Report of:

Honorable Bruce W. Kauffman

Lawrence T. Hoyle, Jr., Esquire

Mr. James H. Higgins

Mrs. Antonia L. Scarlata

Date: July 17, 1991

PART |

IN THE MATTER OF

THE HONORABLE ROLF LARSEN

|

Hearing Docket Number 140

74

a) ahi heals, Si ate a 2

FINDINGS AND REPORT OF THE

JUDICIAL INQUIRY AND REVIEW BOARD

IN CONNECTION WITH BOARD MATTER NO. 140

Respondent, Rolf Larsen, is a Justice of the Supreme Court

of Pennsylvania. The Judicial Inquiry and Review Board, hav-

ing concluded the necessary inquiry, investigation, and for-

mal hearing in this matter, has determined that the

Respondent, Rolf Larsen, has violated the Code of Judicial

Conduct and is therefore subject to discipline.

PROCEDURAL HISTORY

The instant matter involves five allegations of misconduct

levelled against Associate Justice Rolf Larsen of the Pennsyl-

vania Supreme Court.

Following preliminary investigation under JIRB Rule 1, notice

of formal charges was issued on May 24, 1988, to Justice Lar-

sen. The charges set forth two allegations of misconduct. The

first charge asserted violations of Pa. Const. Art V, sec. 17(b),

and Canons 1, 2, and 3(a) of the Pa. Code of Judicial Con-

duct with regard to an allegedly improper ex parte communi-

cation by Justice Larsen to Judge Eunice Ross relating to a

case pending before Judge Ross at the time of the alleged

communication. The second charge asserted violations of Pa.

Const. Art. V, sec. 17(b), and Canons 1 and 2 of the Pennsyl-

vania Code of Judicial Conduct with regard to his alleged pur-

suit of an appeal from the grant of variances to a developer

for the purpose of coercing an inordinate settlement from the

developer. Justice Larsen has denied both charges.

Hearings before the JIRB followed. On October 3, 1988

Amended Charges were issued alleging three additional

charges of misconduct.

The first added charge, Charge Ill, asserted a violation of

Pa. Const. Art V, sec. 17(b) and Canons 1, 2, and 3A(4) of the

Pennsylvania Code of Judicial Conduct with regard to an

alleged improper ex parte communication by Justice Larsen

to Judge Emil Narick of the Allegheny Court of Common Pleas

concerning a case pending before Judge Narick at the time

of the alleged communication. Charge IV concerned another

75

alleged ex parte communication by Justice Larsen to Judge

Narick concerning a different case pending before Judge

Narick. The last added charge, Charge V, alleged violation of

Pa. Const. Art V, sec. 17(b) and Canons 1, 2, and 3A(4) by

attempting to influence Judge Narick’s assignment of then

pending cases to particular judges. On October 11, 1988, by

unanimous vote of the six members then sitting, it was decided

that the added charges would be redesignated as having been

filed pursuant to JIRB Rule 2, rather than JIRB Rule 8 as origi-

nally indicated. All five charges were to be heard ab initio by

a six member panel. The full Board as then composed had

been reduced from nine members to six members as the result

of the recusal of Judge Rowley, Judge Bonavitacola, and Judge

Ross. New members, Judge Kelly, Judge Durham, and Judge

Jiuliante were later appointed to the JIRB and added to the

panel. Thus the panel eventually presiding in this matter

included a full complernent of nine members. New proceed-

ings including motions, discovery, and hearing followed. From

March 15, 1989, forward, all proceedings were conducted

before a full nine member panel. The final hearing at which

new evidence was presented in this matter was conducted on

June 10, 1989.

Effective April 11, 1990, Board Member Judge Durham

resigned. In April 1990, three Rule 9 Reports were issued by

remaining Board members.

A short time thereafter, proceedings were stayed pending

disposition of a special petition for an order seeking a perma-

nent injunction barring this Board from proceeding based upon

alleged procedural irregularities and recusal grounds. Relief

was denied by an evenly divided Court. Larsen v. Kauffman,

a. | ; A.2d ____ (1991) (No. 152 JIRB).

Judge Joseph M. James became a member of the Board

and took Judge Durham's place in these proceedings. All tran-

scripts, exhibits and related documents were provided for

Judge James’ review and analysis, including all three Rule 9

reports.

Folluwing removal of the Supreme Court’s stay, this Board

conducted the required Rule 11 Hearing on May 21, 1991.

Board members Justice Kauffman, Mr. Higgins, Mrs.

Scarlata, and Mr. Hoyle now submit the following Findings

76

nei et ice bein 2

and Report to the Pennsylvania Supreme Court.

FINDINGS OF FACT PERTAINING TO ALL CHARGES

1. Justice Rolf Larsen is a member of the Supreme Court

of Pennsylvania first elected to his office on November 7, 1977.

(Larsen 2507)

2. Respondent presented substantial character and repu-

tation evidence concerning his reputation as a competent,

truthful, hard-working member of the judiciary who is also a

compassionate human being. (Exhibits R-24, R-25; Uehlein

1066-70; Lewis 1162-1173; Cindrich 1174-1183; Lightman

1221-30; Zavarella 1319-21; Bascelli 1385-87; McCommons

1387-90; Hafer 2481-84; Preate 2485-2505; Mendelson 2933)

CHARGE 1

FINDINGS OF FACT

Francis Estate

3. In September 1982, Homer Douglas Francis died. (Lamp!

56)

4. At that time, Mr. Francis was in bankruptcy. (Lampl 55-56)

5. Mr. Francis was represented in the bankruptcy by attor-

ney Robert Lampl. (Lampl 55-56)

6. After Mr. Francis’ death, the bankruptcy was resolved

by a sale of the remaining property in the debtor’s estate to

his sister and the case was dismissed. (Lamp! 56-57)

7. At about this time, Mr. Francis’ sister, Mrs. Vanyo, and

Mr. Francis’ attorney, John Botula, took out letters of adminis-

tration as administrators of the estate. (Ross 796)

8. In 1983, the administration of the Francis estate was

before Judge Eunice Ross. (Ross 797)

9. Judge Eunice Ross has been a judge of the Court of Com-

mon Pleas, Orphans Court Division, of Allegheny County since

1972. (Ross 795-796)

10. In July 1983, a creditor of the Francis Estate cited the

estate’s representatives to show cause why they should not

file an account. No account was filed. (Ross 797)

11. In September 1983, Judge Ross ordered the filing of

an accounting in the Francis Estate. (Ross 797)

12. Mr. Botula and Ms. Vanyo filed an account showing no

receipts and no disbursements. (Ross 797)

13. In January 1985, a creditor of the Francis Estate inquired

of Judge Ross’s court about Lo Vol Fuels, an entity in which

decedent Francis had an interest. Attorney Botula, a creditor,

had taken $200,000 of Lo Vol assets owed to him without

bankruptcy court approval. (Ross 797-798)

14. Judge Ross then deposed Ms. Vanyo and Mr. Botula

for conflicts of interest. Ms. Vanyo had received a favorable

real estate conveyance from the estate; Mr. Botula had

received an improper preference in the repayment of a loan

he had made to the bankrupt. The purpose of the loan was

to swell the amount of assets in the bankruptcy estate so that

it would look good to creditors. (Ross 798-799, 836-840)

15. Judge Ross subsequently appointed Joan Ellenbogen

as administratrix pro tem to marshal the estate’s assets and

compel accountings by people who received assets. (Ross 798-

799)

16. In 1985, Judge Ross had Mr. Lampi come to her court

room to give background information on the bankruptcy case.

(Lamp! 57-58, 61)

17. On January 24, 1986, an order was issued in the Francis

matter directing Attorney Lampli to show cause why he should

not be required to return assets listed in the Petition for Cita-

tion filed by Administratrix Pro Tem Ellenbogen. (Exhibit B-5)

18. Mr. James Ashton represented Mr. Lamp! in this mat-

ter. (R-4; R-5)

19. Mr. Ashton and Mr. Lamp! have offices in the same

building and associate with each other on many cases. (Ashton

180-181)

20. Mr. Ashton is a personal friend of Respondent. (Larsen

2517-2519)

21. Respondent met Mr. Ashton shortly after his reinstate-

ment to the Bar in 1983 following his disbarment due to a felony

conviction brought on by alcoholism. Respondent offered Mr.

Ashton continuing kindness, support, and encouragement dur-

ing his struggle to ‘‘stay on the wagon.” (Ashton 246, 285-286;

Larsen 2517-2520)

78

22. In late April, 1986, Mr. Ashton filed preliminary objec-

tions on behalf of Mr. Lampl to the Administratrix Pro Tem’s

petition to recover assets from Mr. Lampl in the Francis estate.

(Exhibit B-5; Ross 800-801)

23. The preliminary objections filed by Mr. Ashton were

scheduled to be heard on June 2, 1986, by the Court En Banc.

(Ross 800-801)

24. On May 15, 1986, Judge Ross initiated a meeting with

an F.B.|. agent and the U.S. Attorney concerning Lo Vol Fuels

in which Judge Ross reported to the F.B.I. wrongdoing that

she suspected from reading the Lo Vol Fuels bankruptcy tran-

script. (Ross 892-893)

25. Prior to May 29, 1986, the Court had found $500,000

missing from the Francis estate and had identified the amount

received by each recipient of this money. (Ross 834-836)

26. The question to be resolved as of May 29, 1986, was

whether this money had been properly utilized by its recipients,

including Mr. Lampl. (Ross 836-844)

The May 30, 1986 Meeting

27. On May 29, 1986, Respondent made an appointment

to see Judge Ross in her chambers. (Ross 801-804; Larsen

2536)

28. Prior to May 30, 1986, Judge Ross had never discussed

the Francis case with Respondent. (Ross 806-811, 831)

29. On May 30, 1986, Judge Ross met with Respondent in

her chambers. (Ross 806-807; Larsen 2544)

30. No one other than Judge Ross and Respondent were

present at this meeting. (Ross 807)

31. In the course of the conversation which ensued, Judge

Ross testified that Respondent told her, “Listen, | met two guys

on the street and they told me to tell Judge Ross in the Homer

Douglas Francis case that John Botula took all the money and

he used it to buy a condominium in Florida.’’ (Ross 809)

32. Judge Ross testified that she responded that this was

not true; she knew about the condominium, which was only

worth $15,000.00, and that there was $500,000.00 missing from

the estate. (Ross 809)

33. Judge Ross testified that she listed all of the people

79

who had gotten money from the estate together with the

amounts o

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