# Appendix — In re Larsen

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0872%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 815

## Text

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

,
H -
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 Judg

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0872%3A2. Public record. Not legal advice.