Matter of Dandridge

337 A.2d 885, 462 Pa. 67, 1975 Pa. LEXIS 836

• Court: Supreme Court of Pennsylvania
• Decided: May 13, 1975
• Docket: 47
• Status: Published

Opinions

OPINION OF THE COURT

JONES, Chief Justice.

The Judicial Inquiry and Review Board instituted formal proceedings against Judge Paul A. Dandridge by written notice served on June 3, 1974, charging the Judge as follows:

“It is charged that PAUL A. DANDRIDGE, Judge of the Court of Common Pleas of Philadelphia County, has violated the Constitution of Pennsylvania, Article V, Section 17 (b), as follows:

‘Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court. .' . . ’

IN THAT PAUL A. DANDRIDGE, on or about December 6, 1972, accepted the net proceeds from a testimonial dinner in his honor for his own personal use, in violation of Paragraph 32 of the Canons of Judicial Ethics in effect at that time, which provided that:

‘A judge should not accept any presents or favors from litigants, or from lawyers practising before him or from others whose interests are likely to be submitted to him for judgment’,

and it is further charged that his conduct in accepting such monies gives the appearance of impropriety.”

“WHEREFORE, said PAUL A. DANDRIDGE is subject to discipline, suspension or removal from office pursuant to Article V, Section 18(d) of the Pennsylvania Constitution.”

A hearing on the matter was conducted on June 19, 1974, before a panel of three members of the Board. On September 3, 1974, the full Board, consisting of nine members, issued its Report. The Board concluded that the charges against Judge Dandridge were proven and recommended that Judge Dandridge be privately admonished and that, within a reasonable time, Judge Dandridge should turn over to the Commonwealth an amount¹ equal to the monies received by Judge Dandridge after the testimonial dinner given in his honor. The Board stated that it reached its conclusions and recommendations in spite of Judge Dandridge’s “exemplary service as a trial judge . . .his noteworthy efforts in civic activities, and . . .his excellent reputation for judicial temperament and integrity,” and in spite of what the Board described as “the unfortunate and improper practice which apparently exists in Philadelphia County of some judges retaining proceeds from dinners held in their honor.”

After argument before the entire Board on October 22, 1974, the Board issued a final order on November 25, 1974, affirming its prior Report. On December 19, 1974, before Judge Dandridge’s thirty-day period for appeal expired under Rule 17 of the Rules of Procedure Governing the Judicial Inquiry and Review Board, this Court issued an Order adopting the recommendations of the Board. On December 20, 1974, a Petition to Vacate the Order of December 19, 1974, and a Petition Pursuant to Rule 17 of the Rules of Procedure Governing the-Judicial Inquiry and Review Board were filed with this Court on behalf of J udge Dandridge.

On January 10, 1975, this Court issued an Order that the two petitions be held under advisement and that attorneys for Judge Dandridge and the counsel assigned by the Attorney General under Rule 5(a) of the Judicial Inquiry and Review Board were to file briefs.

Upon consideration of the briefs and the oral argument held March 14, 1975, we hereby vacate our Order of December 19, 1974, as having been entered prematurely. Upon consideration of the entire proceedings however, we are convinced that Judge Dandridge has not been denied his constitutional rights and we are confident that the findings of fact, conclusions and recommendations of the Board in this matter are just and proper.

I

It is urged on Judge Dandridge’s behalf that he was charged only with a violation of Canon 32 of the Canons of Judicial Ethics² which Canons were in existence at the time the allegedly improper conduct took place but which were repealed and superseded by the Code of Judicial Conduct adopted by this Court on November 21, 1973, effective January 1, 1974. There was no saving clause provision in the November 21, 1973, order. Counsel for Judge Dandridge argues that the charges should be dismissed as having no basis in authority.

The answer to this argument is that the charges were not simply restricted to a violation of Canon 32. It was also charged:

“that his conduct in accepting such monies gives the appearance of impropriety.” (See charge, supra p. 886).

This language was tantamount to a charge of violation of Canon 4 ³ of the now repealed Canons of Judicial Ethics. Judge Dandridge and the dissenting opinion of Justice Nix seem to say that because the words “Canon 4” are not in the charge, due process is violated by the finding that he gave the appearance of impropriety. Failure to cite in the Notice any specific Canon or Rule does not render the Notice vague. Rule of Procedure 2(b) of the Board merely requires this:

“The notice shall specify in ordinary and concise language the charges against the judge and the alleged facts upon which such charges are based, and shall advise the judge of his right to file a written answer to the charges against him within twenty (20) days after service of the notice upon him.” (Emphasis added).

Even a criminal indictment that fails to include a statutory citation will stand. Commonwealth ex rel. Robinson v. Baldi, 175 Pa.Super. 550, 106 A.2d 689, 690-91 (1954). See Pa.R.Crim. 213(b), 19 P.S. Appendix.

Furthermore, even though Canons 4 and 32 have been repealed, there is no dispute about the fact that these Canons were in effect at the time when the dinner was held and when Judge Dandridge received the money. And the standards which proscribed that conduct are carried forward without interruption to this day by the Code of Judicial Conduct. The proscriptions of old Canon 4 regulating the appearances of impropriety are now entirely embodied within the language of the new Canon 2:

“A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.”

Although the language of Canon 32 does not survive in the new Code, the earlier prohibition against accepting improper gifts is encompassed in the language of new Canon 5, subd. C (1):

“A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.”

More persuasively, the present Canon 2 was clearly intended to carry forward the proscription of old Canon 32 as applied to a matter such as the evidence discloses in this case. The Reporter’s Notes to the current American Bar Association Code of Judicial Conduct, in discussing Canon 5C(4)(a) (not adopted by this Court, but which permits accepting a gift incident to a public testimonial) say:

“In subsection (4) (a) the Committee identified several types of gifts that, as a matter of common sense and in deference to common usage, are made exceptions to the literal language of the general prohibition. A judge is allowed to accept a gift incident to a public testimonial to him, books supplied without cost to him for official use, and an invitation to him and his spouse to attend without cost a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice. The judge must keep in mind, however, that the standard of impropriety and the appearance of impropriety in Canon 2 is applicable to this area of his conduct. Therefore, the circumstances surrounding each gift that falls within (4) (a) must be considered to determine if the requirement of Canon 2 is met. (Emphasis supplied).

II

The repeal of any statute providing for criminal sanctions removes the authority for proceedings based on alleged violations of the statute in question. Genkinger v. Conam, 32 Pa. 99 (1858); Commonwealth v. Gross, 145 Pa.Super. 92, 21 A.2d 238 (1941); Commonwealth v. Beattie, 93 Pa.Super. 404 (1928); Scranton City v. Rose, 60 Pa.Super. 458 (1915). As the Supreme Court of the United States has recognized:

“. . . [W]hen the legislature repeals a criminal statute or otherwise removes the State’s condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct.”

Bell v. Maryland, 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822 (1964).

But, assuming arguendo that Judge Dandridge is entitled to the full complement of constitutional rights which would be available in a criminal proceeding,⁴ these authorities are of no help to him. His argument and the dissenting opinion fail to recognize that, even though a statute is repealed, if some or all of its provisions are reenacted so that the conduct prohibited in the first statute remains censured by the re-enactment, there is nothing which interferes with the power of the State to prosecute the matter without interruption. Commonwealth v. Beattie, supra.5 In this case, the improper conduct of accepting a large gift from lawyers and potential litigants was clearly forbidden by the terms of the Canons of Judicial Ethics which were in effect at the time the violation occurred. Judge Dandridge had unequivocal notice that such conduct was a violation. The new Code of Judicial Conduct, in broader terms, censures the very same conduct. And there was no lapse which would render null and void the proceedings of the Judicial Inquiry and Review Board.

Ill

Finally, we feel compelled to address Judge Dandridge’s complaint that he has been “prosecuted” discriminatively in light of the fact that a practice allegedly exists among some Philadelphia judges to retain testimonial dinner proceeds. The Recommendations of the Board made mention of this practice. Such practice has been specifically condemned at least since the adoption by this Court of the Canons of Judicial Ethics in 1965. Furthermore, those Canons had been adopted by the Pennsylvania Bar Association in 1949. Ignorance of the Canons and misconduct by others are no defense. There is no evidence in this record that the Judicial Inquiry and Review Board has turned its head on specific violations by other judges or that any particular instances were brought to its attention. And the record is equally barren of any suggestion that Judge Dandridge was singled out by the Board; that he is a “scapegoat.” If discrimination was to be established, Judge Dandridge had the burden of placing the appropriate evidence on the record.

Accordingly, it is hereby ordered:

1. That the Order of this Court, entered December 19, 1974, at Judicial Inquiry and Review Board Docket 47, having been entered prematurely, the said order is hereby vacated;

2. That the findings of fact, conclusions and recommendations of the Board in this matter be and hereby are adopted as being just and proper;

3. That the Board is hereby authorized, in accordance with its recommendation, “to admonish Paul A. Dandridge concerning his conduct in accepting the proceeds of a testimonial dinner for his own personal use;”

4. That on or before June 15, 1975, Judge Dandridge transfer and pay over to the Commonwealth of Pennsylvania for its use the sum of twenty-three thousand, five hundred ($23,500.00) dollars, being an amount equal to the proceeds of said testimonial dinner which Judge Dandridge had accepted.

NIX, J., filed a dissenting opinion. MANDERINO, J., dissents.

1 . That amount is $23,500.00, which sum, the Board found, “was in no sense a token or memorial gift such as is usually given at dinners or other occasions honoring individuals.”

2 . The Canons of Judicial Ethics were adopted by this Court on February 11, 1965, and are reported at 425 Pa. xxiii-xxxvi. Canon 32 read:

“A judge should not accept any presents or favors from litigants, or from lawyers practicing before him or from others whose interests are likely to be submitted to him for judgment.”

3 . Canon 4:

“A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach.”

4 . A disciplinary proceeding such as this is constitutionality labeled as “quasi-criminal” (In re: Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968)). There is no requirement however to grant the full panoply of constitutional rights available to a criminal defendant.

5 . Cf. Section 2 of the Statutory Construction Act of 1970, P.L. 707, No. 230, as amended by act of December 6, 1972, P.L. 1339, No. 290, 1 Pa.S. § 1962.