In Re Larsen

746 A.2d 108, 1999 WL 1442946

• Court: Court of Judicial Discipline of Pennsylvania
• Decided: February 4, 2000
• Docket: 4 JD 94
• Status: Published

Opinions

OPINION OF THE COURT

PANELLA, Judge.

Introduction

The Judicial Conduct Board filed a Complaint with this Court on June 6, 1994 against former Supreme Court Justice Rolf Larsen. The Complaint consisted of 27 Counts divided into six separate parts. Part A requested disciplinary action based on Respondent’s conviction of two counts of criminal conspiracy, 18 Pa.Cons.Stat. § 903 which are felonies (Counts 1-5); Part B alleged the underlying facts which supported the convictions, i.e., that Respondent conspired with others to unlawfully obtain a Schedule IV controlled substance (Counts 6-9); Part C contained charges that Respondent made knowingly false material statements before a Grand Jury (Counts 10-14); Part D requested disciplinary action based on allegations that the Respondent filed documents with the Pennsylvania Supreme Court containing averments which were knowingly false or made with reckless disregard for the truth (Counts 15-18); Part E charged the Respondent with failure to recuse in matters involving potential claims of bias and partiality because of his prior relationship, personal and professional, with an attorney (Counts 19-23); and Part F alleged that Respondent had ex-parte conversations regarding two petitions for allowance of appeal pending before the Supreme Court (Counts 24-27).¹

On September 18, 1998, the Board filed a Motion to withdraw, with prejudice, the Charges contained in Parts B, C, D, E, and F, which this Court granted on October 2,1998.

On May 3, 1999, the Board filed a Motion to withdraw Count 5 of Part A of the Complaint, which this Court granted on May 20,1999.²

This case then proceeded to trial solely on the Board’s contentions in Counts 1 through 4 contained in the Complaint. The relevant portion of the Complaint states:

In the case of Commonwealth v. Rolf Larsen, 98-13844, Court of Common Pleas of Allegheny County, Pennsylvania, Justice Larsen was convicted of Counts 1 and 2, each charging a criminal conspiracy (18 Pa.C.S. § 903) to violate the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. §§ 780-113(a)(12) and (a)(14); said violations being felonies.

A trial was held on June 30, 1999 at which time testimony was taken. Subsequently the Board and the Respondent furnished the Court with proposed findings of fact and conclusions of law.

The Board has charged (in Part A of the Complaint) that Respondent’s conviction of a felony subjects him to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution because the conviction constitutes:

1. a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (conviction of a felony, Count 1),

2. a violation of Article V, § 17(b) of the Pennsylvania Constitution (activity prohibited by law, Count 2),

3. a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (conduct which brings the judicial office into disrepute, Count 3), and

4. a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution (conduct in violation of a canon or rule prescribed by the Supreme Court, to wit: Canons 1 and 2 of the Code of Judicial Conduct, Count 4).

Findings of Fact

Regrettably, the Board and the Respondent were not able to reach stipulations as to a number of seemingly indisputable matters. Therefore, the evidence presented by the Board included, inter alia:

1. The testimony of the Honorable Terrance O’Brien, the trial judge in Commonwealth v. Larsen, Court of Common Pleas of Allegheny County, Criminal Docket No. 93-13844 (N.T. 87-89);

2. The docket entries and verdict slips in Commonwealth v. Larsen, Allegheny County Criminal Docket No. 93-13844 (Board Exhibits 7 and 8);

3. The Superior Court’s decision in Commonwealth v. Larsen, 452 Pa.Super. 508, 682 A.2d 783 (1996) (Board Exhibit 3a);

4. The Supreme Court’s Order of March 19, 1997, Commonwealth v.. Larsen, 547 Pa. 752, 692 A.2d 564 (1997) (Board Exhibit 3b);

5. Transcript of Respondent’s resen-tencing on May 27, 1997 by the trial court (Board Exhibit 10); and

6. The docket entries from Commonwealth v. Larsen, Court of Common Pleas of Allegheny County, Criminal Docket No. 93-13844 (Board Exhibit 7).

This evidence conclusively established that the Respondent was found guilty in the Court of Common Pleas of Alegheny County of two counts of Criminal Conspiracy. Following sentencing, the Respondent filed a direct appeal. The Superior Court of Pennsylvania affirmed the conviction, however, it remanded solely for re-sentencing. The Respondent’s Petition for Allowance of Appeal to the Supreme Court of Pennsylvania was denied by way of an Order of March 19,1997. The Respondent was resentenced by the trial court on May 27, 1997, to 24 months of probation on Count One, 240 hours of community service and the payment of costs. No appeal was taken from the judgment of sentence of May 27,1997.

Discussion

As aforesaid, the Respondent was found guilty in the Court of Common Pleas of Allegheny County, at Criminal Docket No. 93-13844, of two counts of Criminal Conspiracy, 18 Pa.Cons.Stat. § 903. All direct appeals have been exhausted. The basis of the Board’s request for disciplinary action is now limited to the Respondent’s criminal conviction, although the Board argues that four separate constitutional provisions were violated.

In light of Respondent’s conviction, there is no question presented as to whether grounds for discipline exist. The Pennsylvania Constitution provides, in pertinent part: “A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony .... ” Pa. Const.Art. V, § 18(d)(1) (Emphasis added). Thus, although other grounds for discipline may exist, a review of the other constitutional provisions is unnecessary because the criminal conviction provides a per se basis for discipline. Furthermore, since the Respondent’s conviction is now considered final, he cannot collaterally attack his conviction in these proceedings. Cf. Office of Disciplinary Counsel v. Costigan, 526 Pa. 16, 584 A.2d 296 (1990) (Criminal convictions provided per se basis for discipline of attorney).

Therefore, we find that the Board has established by clear and convincing evidence³ that Respondent was convicted of a felony.

Conclusions of Law

1. The Respondent was convicted of two counts of criminal conspiracy, 18 Pa. Cons.Stat. § 903, in the Court of Common Pleas of Allegheny County, Fifth Judicial District, Criminal Docket No. 93-13844.

2. This crime is classified as a felony.

3. The aforesaid conviction subjects the Respondent to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution.⁴

ORDER

PER CURIAM.

AND NOW, this 31st day of December, 1999, based upon the Conclusions of Law, it is hereby ORDERED:

That, pursuant to C.J.D.R.P. No. 503, the attached Opinion with Findings of Fact and Conclusions of Law be and it is hereby filed, and shall be served on the Judicial Conduct Board and upon the Respondent,

That, either party may file written objections to the Court’s Conclusions of Law within ten (10) days of this Order. Said objections shall include the basis therefor and shall be served on the opposing party,

That, in the event that such objections are filed, the Court shall determine whether to entertain oral argument upon the objections, and issue an Order setting a date for such oral argument, and

That, in the event objections are not filed, the Conclusions of Law shall become final, and this Court will issue an Order setting a date, pursuant to C.J.D.R.P. No. 504, for a hearing on the issue of sanctions.

BYER, J., files a dissenting opinion.

RUSSO, J., did not participate in the consideration or disposition of this case.

1 . A detailed recitation of the procedural history of this case is contained in our Opinion of August 4, 1998 disposing of Respondent’s Omnibus Motion, In re Larsen, 717 A.2d 39, 40-42 (Pa.Ct.Jud.Disc.1998).

2 . Count 5 of Part A charged that Respondent’s felony conviction constituted violations of certain Rules of Disciplinary Enforcement and Rules of Professional Conduct. The count was withdrawn because of this Court’s Opinion in In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc.1997) which was filed after the Board Complaint in this case.

3 . The Constitution requires that the Board has the burden of proving the charges by clear and convincing evidence. Pa. Const. Art. V, § 18(b)(5).

4 . In an accompanying opinion Judge Byer notes his dissent from the conclusion that this Court has jurisdiction in this case (a conclusion with which he earlier concurred, see, In re Larsen, 717 A.2d 39 (Pa.Ct.Jud.Disc.1998), Byer, J., concurring), for the stated reason that Rule 201 of the Pennsylvania Rules of Disciplinary Enforcement confers jurisdiction on the Disciplinary Board over a former judicial officer’s right to resume the practice of law where the discipline relates, to "nonjudicial acts while in office”, and the fact that the conviction of this Respondent was based on nonjudicial acts. This contention was dismissed by the Supreme Court in Office of Disciplinary Counsel v. Anonymous Attorneys, 528 Pa. 83, 93, 595 A.2d 42, 47 (1991) where that Court said: "This constitutional scheme empowers only JIRB to bring action against judicial officers for any allegations of misconduct which arise during that officer’s tenure in the judiciary,” emphasis added. Furthermore, this subject received thorough treatment in this Court's earlier decision when we dismissed Respondent's Omnibus Motion, see, In re Larsen, supra, at 43-46.