In Re Hasay

I respectfully dissent from the result reached in the Opinion of the Court, specifically relating to Part B of the Complaint filed by the Judicial Conduct Board. While I agree with the majority that the Board did not establish the charges contained in Parts A and C of the Complaint by clear and convincing evidence, I am persuaded that the Board has met its burden concerning the charge of possession of a controlled substance. Therefore, I would conclude that Respondent Hasay has not only conducted himself in a manner that has brought the judicial office into disrepute, he has also violated art. V, sec. 17(b) of the Pennsylvania Constitution.

The parties stipulated that the substance found at Respondent Hasay's residence was marijuana and that it was discovered in his bedroom. N.T., May 24, 1995, at 88. Not only did the Respondent advise Detective Walter F. Carlson that the marijuana was given to him by some friends as a joke, but he also stated that the marijuana was his. Id. at 101. Retired Pennsylvania State Trooper Charles W. Casey testified that the marijuana was discovered in an upstairs bedroom underneath a bed. Id. at 163. He further testified that there were no beds in the other rooms upstairs. Id.

Respondent Hasay testified on direct examination that he had put the marijuana on a bar tray behind the bar some seven years before, "and that was the last [he] had seen of it and the tray."Id. at 169. He acknowledged under oath that he picked it up and put it in the bar tray. Id. at 207. He admitted that it remained under his bed for almost seven years. Id. He knew it was illegal when it was brought into his home, id. at 208, and he admitted possessing it for seven years:

Q. [By Mr. Anthony, Asst. Board Counsel]: And you possessed this marijuana for seven years?

A. [By John Hasay]: That's correct.

N.T., May 24, 1995, at 208-09.

Our Supreme Court has defined constructive possession as "the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control." Commonwealth v. Macolino, 503 Pa. 201,206, 469 A.2d 132, 134 (1983). The intent to maintain a conscious dominion may be inferred from the totality of the circumstances, and circumstantial evidence may be used to establish a person's possession of drugs or contraband. Id. at 206, 469 A.2d at 134,cited and followed in Commonwealth v. Valette, 531 Pa. 384, 388,613 A.2d 548, 550 (1992).

On the facts presented in the hearing before this Court, and taking into account the totality of the circumstances, I respectfully conclude that the evidence presented by the Board, when coupled with the admissions by the Respondent, was more than sufficient to support a finding that Respondent was guilty of possession¹ on either a standard of clear and convincing evidence or proof beyond a reasonable doubt.

I am thus of the opinion that Respondent engaged in activity prohibited by law, specifically 35 P.S. Section 780-113(a)(16) (possession of a controlled substance — marijuana), and that his disregard for the gravity of possessing a controlled substance not only manifests his disrespect for the significance of his judicial office, but has brought that office into disrepute.

With respect to this issue, I must therefore specifically dissent from Finding of Fact No. 26 in the Opinion of the Court: "Respondent did not intentionally or knowingly possess the marijuana on February 10, 1991." Initially, I believe this has been incorrectly identified as a finding of fact and appropriately should be designated a conclusion of law. As indicated above, I would reach the contrary conclusion.

Unfortunately, this is not the only matter in the Opinion of the Court with which I cannot agree. Respondent admitted in his testimony before this Court to heavy drinking associated with all three of the occurrences before us, all of which happened during the time he was either performing the duties of a district justice, or was suspended from such duties because of criminal prosecution. That heavy drinking clearly led to errors in judgment and personal conduct not in keeping with accepted community standards.

The Pennsylvania Constitution charges this Court to discipline a member of the judiciary of the Commonwealth for "conduct which . . . brings the judicial office into disrepute whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law." Art. V, sec. 18(d)(1). I believe that this language in the new art. V, section 18 encompasses conduct which is far more "private" or personal than the old art. V, section 18.

In In the Matter of Dalessandro, 483 Pa. 431, 397 A.2d 743 (1979), an opinion which interpreted the old constitutional language relating to the discipline of judges, the judge had not been convicted of any criminal conduct, but he had engaged in arguably objectionable conduct. In reversing the Judicial Inquiry and Review Board's determination that the judge should be publicly censored, the Pennsylvania Supreme Court discussed the inappropriateness, under the old constitutional language, of "discipline based on conduct unrelated to a judge's official conduct which is not prohibited by public policy of this Commonwealth as manifested in its laws." Dalessandro,483 Pa. at 461, 397 A.2d at 758. I believe that the language in the new art. V, section 18(d) authorizing discipline "whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law," which may have been drafted in specific response to this type of decision, broadens the disciplinary charge and obligation of this Court.

The testimony of the Respondent, together with the testimony of a number of witnesses, produced clear and convincing evidence that he committed indiscretions of personal conduct and errors in judgment and demonstrated a lack of personal control, even though the general charges of rape, kidnapping and the related crimes were not substantiated by clear and convincing evidence.

Even given that fact that (1) Respondent was not convicted by a criminal court of the charges relating to possession and non-consensual sexual conduct, and (2) the evidence to substantiate Parts A and C of the Board Complaint was not sufficient to convince the majority of this Court that the Respondent was guilty of the offenses charged, the pattern of conduct that was developed at trial before this Court leads me to believe that he held his office in contempt and brought the office into disrepute.

For the several reasons expressed above, I respectfully dissent from those portions of the Opinion which determine that the Respondent did not violate art. V, sec. 17(b) of the Pennsylvania Constitution, and that he did not bring the judicial office into disrepute.

Johnson, J., joins in dissent.

¹ I am of the opinion that this record establishes that Respondent possessed the marijuana. However, even if that stricter standard has not been met, Respondent clearly had constructive possession of the substance.