In re Jennings

200 A.3d 653
Procedural entryThis page is a short order in In re Jennings. Read the opinion of the Court — 192 A.3d 372
Court of Judicial Discipline of Pennsylvania·Decided December 19, 2018·No. No. 4 JD 14·Published

Opinion

FILED BY PRESIDENT JUDGE DAVID J. BARTON

*654Former Magisterial District Judge Robert Jennings, III, returns to this Court for a determination as to the sanction that should be imposed for the ethical violations found in our Opinion of July 18, 2018. In re Robert Jennings , III, 192 A.3d 372 (Pa.Ct.Jud.Disc. 2018) . There, we found that the two misdemeanor criminal convictions arising from Jennings's conduct in macing state constables who served arrest warrants and civil process from his judicial office violated the five canonical and constitutional provisions alleged by the Judicial Conduct Board. Those include:

1. Violation of Old Rule 2, Impropriety and Appearance of Impropriety to be Avoided:

A. Magisterial district judges shall respect and comply with the law and shall conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary[.]

2. Violation of Old Rule 12, Incompatible practices:

Magisterial district judges and all employees assigned to or appointed by magisterial district judges shall not engage, directly or indirectly, in any activity or act incompatible with the expeditious, proper and impartial discharge of their duties, including, but not limited to: (1) in any activity prohibited by law[.]

3. Violation of Article V, § 18(d)(1) of the Pennsylvania Constitution ("[magisterial district judge] may be suspended, removed from office or otherwise disciplined for ... conduct which prejudices the proper administration of justice ....")

4. Violation of Article V, § 18(d)(l) of the Pennsylvania Constitution ("a [magisterial district judge] may be suspended, removed from office or otherwise disciplined for ... conduct ... which brings the judicial office into disrepute, whether or not the conduct occurred while acting in a judicial capacity ...." and

5. Violation of Article V, § 17(b) of the Pennsylvania Constitution ("[magisterial district judges] shall be governed by rules or canons which shall be prescribed by the Supreme Court.")

The details surrounding former Judge Jennings's plea of nolo contentere to these crimes, 18 Pa.C.S. § 2906(a)(4) criminal coercion (M-2), and 18 Pa.C.S. § 7322 demanding property to secure employment (M-2), are set forth in our prior opinion and we will not repeat them here.

FACTORS CONSIDERED ON SANCTIONS

In determining what sanction will be imposed for a violation of the MDJ Rules or Code of Judicial Conduct we are guided by the jurisprudence of our Supreme Court, and also from our prior decisions. We have adopted ten non-exclusive factors, sometimes called "Deming factors" from the original Washington State case where they were exposited that we consider in arriving at a sanction. In re Roca, 151 A.3d 739, 741 (Pa.Ct.Jud.Disc. 2016), aff'd, 173 A.3d 1176 (Pa. 2017) citing *655In re Toczydlowski, 853 A.2d 24 (Pa.Ct.Jud.Disc. 2004) ; In re Deming, 108 Wash.2d 82, 736 P.2d 639 (1987).

The ten factors and our analysis of each in this case include:

(1) Whether the misconduct is an isolated instance or evidenced a pattern of conduct: The conduct giving rise to the instant violations is isolated.

(2) The nature, extent and frequency of occurrence of the acts of misconduct: Former Judge Jennings's acts in demanding ten percent of constables' earnings toward his re-election fund encompassed the period surrounding his political campaign during which he was seeking a second six year term. Because his criminal sentence included restitution, it is evident that his scheme did, in fact, result in over $3,000.00 being paid for his benefit to his re-election campaign fund.

(3) Whether the conduct occurred in or out of the courtroom: The conduct involved interactions with state constables inside of the court facility, but outside of the courtroom.

(4) Whether the misconduct occurred in the judge's official capacity or in his private life: Because the conduct involved demanding political contributions of those who were essentially working in his judicial office, and to whom he was able to assign - or not assign - compensated work, we determine that the acts occurred in his official capacity.

(5) Whether the judge has acknowledged or recognized that the acts occurred: Former Judge Jennings testified at the sanction hearing and acknowledged entering a plea of nolo contendere to criminal charges filed against him by the Office of Attorney General. However, he also stated that these pleas were the result of poor legal advice rendered by his criminal counsel (not his current counsel). While he acknowledged his conviction, at the sanction hearing, the following exchange took place:

JUDGE FORADORA: Did you retire to avoid consequences?
MR. JENNINGS: No, sir. As a matter of fact, Your Honor, I was given an opportunity if I resigned that this would go away; but I chose to fight it. It cost me a lot of money, but I chose to fight it because I didn't do what they said.

N.T. 31

As noted by counsel for the Board, former Judge Jennings did enter his plea in the Court of Common Pleas before trial, and did enter into stipulations rather than litigating the factual basis of this case. We note that this involves some degree of acceptance and admission of the conduct, and that it avoided the need for the Board to use its resources in presenting this case in a contested trial.

(6) Whether the judge has evidenced an effort to change or modify his or her conduct: Former Judge Jennings resigned his commission as a magisterial district judge for Dauphin County shortly following this Court changing his suspension from one with pay, to one without pay. Because of his resignation, he is unlikely to re-offend.

(7) The length of service on the bench: Former Judge Jennings was elected in 2003 and commenced his judicial service in January, 2004.

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