In Re Nakoski Ex Rel. Magisterial District 06-3-01

742 A.2d 260, 1999 WL 1095496
CourtCourt of Judicial Discipline of Pennsylvania
DecidedJune 3, 2001
Docket4 JD 98
StatusPublished
Cited by4 cases

This text of 742 A.2d 260 (In Re Nakoski Ex Rel. Magisterial District 06-3-01) is published on Counsel Stack Legal Research, covering Court of Judicial Discipline of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Nakoski Ex Rel. Magisterial District 06-3-01, 742 A.2d 260, 1999 WL 1095496 (cjdpa 2001).

Opinions

SWEENEY, Judge.

I.INTRODUCTION

The Judicial Conduct Board (Board) filed a Complaint with this Court against District Justice Peter Paul Nakoski, Jr. The Complaint contains five Counts based on allegations that, during a Criminal Law Review class which was given as part of the mandatory Minor Judiciary Continuing Education Recertification Program at Wilson College in Chambersburg, Pennsylvania on October 7, 1997, the instructor, in the course of discussing what constitutes probable cause for a stop and search, asked the class, “It’s not unlawful or illegal to be a black man, is it?” and the Respondent answered, “Yes”, and gave further response.

A trial was held on March 1, 1999 at which time testimony was taken and the Board and the Respondent furnished the Court with Stipulations of Fact which were made part of the record.

II. FINDINGS OF FACT

This Court finds the following facts contained in the Stipulations of Fact submitted by the parties:

1. The Respondent is the duly-elected district justice serving Magisterial District 06-3-01, which encompasses the townships of Harbor Creek, Lawrence Park, and the Borough of Wesleyville in Erie County.

2. The Respondent commenced his judicial service on or about January 5, 1976. Respondent continues to serve as district justice at the present time. His current term ends in January 2000.

3. From October 6, 1997 through October 10, 1997, the Respondent attended the mandatory Minor Judiciary Continuing Education Recertification Program on the campus of Wilson College in Chambers-burg, Pennsylvania. On October 7, 1997, the Respondent attended the Criminal Law Review/Update class taught by Attorney William Tully. No members of the general public attended the Criminal Law Review/Update class.

4. During the Criminal Law Review/Update class, Instructor Tully dis[262]*262cussed with the class the Supreme Court case Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997), where the Pennsylvania Supreme Court reversed the conviction of an African-American male for a violation of the Uniform Firearms Act because police lacked sufficient probable cause to make an arrest.

5. During the discussion' of Hawkins, Attorney Tully asked the. entire class the question, “It’s not unlawful or illegal to be a black man, is it?”

6. The Respondent answered, ‘Tes”, and provided further response. With regard to the remainder of the Respondent’s answer, it is agreed that there were additional words spoken. However, there is no stenographic, audio, or video recording of his response.

7. The Respondent was never asked by the class instructor, Attorney Tully; the complaining district justice, Elizabeth Romig; or any other members of the class; the school administrators of the Minor Judiciary Education Board, including the executive director, Robert Hessler, his aides, servants, or employees to explain his answer. The Respondent was not contacted about this matter until June 8, 1998 when he received Exhibit 1, the Judicial Conduct Board Notice of Full Investigation.

8. The complaining district justice, Elizabeth Romig, is not of African-American decent. There were no African-Americans in the class, and no African-American has filed a complaint against the Respondent.

9. The Judicial Conduct Board is presently not in possession of any other evidence of the Respondent having a racial prejudice or racial bias, other than the Respondent’s statements during the class in question.

10. Any knowledge of the Respondent’s mental state concerning the existence of bias or prejudice at the time of the alleged subject utterances are based on the Respondent’s conduct during the class in question.

11. Thirty-seven of the 48 district justices attending the subject Criminal Law Review class have made unsworn statements to the Judicial Conduct Board’s chief investigator that either they have no remembrance or recollection of the Respondent making any statement or, if they did, what those utterances were.

In addition, this Court finds that:

12. After responding to instructor Tully’s question, Respondent said some or all of the following: “They’re all in jail. They’re the ones doing all the robberies and burglaries.”

13. There is no evidence, nor does the Board contend, that Respondent’s execution of his judicial duties is in any way infected with racial bigotry. The evidence affirmatively establishes the contrary.

14. Respondent’s reputation for fairness and racial evenhandedness in the discharge of his judicial duties is excellent.

III. DISCUSSION

The constitutional amendment of 1993 establishing this Court provided certain specific instructions for the conduct of proceedings before this Court:

All hearings conducted by the court shall be public proceedings conducted pursuant to the rules adopted by the court and in accordance with the principles of due process and the law of evidence. Parties appearing before the court shall have a right to discovery pursuant to the rules adopted by the court and shall have the right to subpoena witnesses and to compel the production of documents, books, accounts and other records as relevant. The subject of the charges shall be presumed innocent in any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence.

Pa. Const. Art. V, § 18(b)(5).

The Pennsylvania Supreme Court has defined clear and convincing evidence as follows:

[263]*263The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony 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. ... It is not necessary that the evidence be uncontradicted ... provided it “carries conviction to the mind” or carries “a clear conviction of its truth.”

In re Adoption of J.J., 511 Pa. 590, 595, 515 A.2d 883, 886 (1986). See, also, LaRocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).

Acting under the provisions of C.J.D.R.P. No. 501, the President Judge appointed a Panel to conduct the trial of this case. The Panel, consisting of Conference Judge Sweeney, Judge Panella and Judge Russo, conducted the trial on March 1, 1999. Findings of Fact were initially made by the Panel.

Since the Constitution requires that “all actions of the court ... shall require approval by a majority vote of the members of the court” the Panel’s Findings of Fact have been reviewed and this Decision is rendered by the full Court. As we noted in In re Manning, 711 A.2d 1113, 1117 (Pa.Ct.Jud.Disc.1998), this Court is constrained to accord special deference to the findings of a Panel for, as the ones who hear the witnesses testify and observe their demeanor, it is they who are best positioned to assess credibility.

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742 A.2d 260, 1999 WL 1095496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nakoski-ex-rel-magisterial-district-06-3-01-cjdpa-2001.