Editor’s note: Samuel C. Stretton represents a judge in the ongoing investigation of the Traffic Court.

To The Legal:

The actions of the Pennsylvania Supreme Court in hiring a firm to investigate the Philadelphia Traffic Court raises some serious questions about whether that was permissible activity. Although under Article 5 of the Pennsylvania Constitution, the Pennsylvania Supreme Court has supervisory powers, under Article 5, Section 18, professional judicial discipline was taken from the Supreme Court and placed in the hands of the Judicial Conduct Board and the newly created Court of Judicial Discipline. The Pennsylvania Supreme Court only has the right of a very limited review on appeal from the Court of Judicial Discipline.

Therefore, it would appear there is no reason or authority for the Pennsylvania Supreme Court to conduct an independent investigation using public monies when the Judicial Conduct Board is constitutionally set forth as the agency to perform such investigations. If the investigation was too big for the Judicial Conduct Board to handle due to lack of resources, that could be remedied by allotting additional monies to the Judicial Conduct Board to hire other investigators and attorneys if needed.

But the question becomes why the Pennsylvania Supreme Court is spending money on a private organization to do the investigation when the Pennsylvania Supreme Court does not have this sort of disciplinary authority any longer. The constitution has clearly defined the Judicial Conduct Board as the organization that should be doing these investigations. Any suggestion this was just an administrative investigation is contradicted by the referral to the Judicial Conduct Board and the manner in which the investigation was conducted.

The problem with this private investigation by the Pennsylvania Supreme Court is there is no longer the safeguards as set forth in the investigations as required by the Rules of Conduct of the Judicial Conduct Board and also the Court of Judicial Discipline. Time limits, right to refuse to answer questions and confidentiality no longer exists in these private investigations. Coercion to speak is the modus operandi.

The private investigation has no rules or regulations.

By having a private investigator funded by the Pennsylvania Supreme Court, there are also questions as to whether or not the court can later review any subsequent attempts at discipline by the Judicial Conduct Board and the Court of Judicial Discipline that arises out of the Supreme Court’s privately funded investigation.

Although everyone is in favor of preventing misconduct by judges, particularly after the fiasco in Luzerne County, there are still serious concerns about the methodology and due process. The Pennsylvania Supreme Court has vast powers in regulating the bench and bar, but it does not have unlimited powers. The powers stem from the constitution, and the Pennsylvania Constitution has made it very clear that discipline and quasi-discipline investigations are not within the power of the Pennsylvania Supreme Court any longer since the constitutional amendments in 1993. If the Pennsylvania Supreme Court ignores that and continues to play a quasi-judicial discipline investigatory role, as opposed to referring the matters directly to the Judicial Conduct Board, then there are serious questions that arise concerning the fairness of the procedure and whether or not the court has overstepped or acted even in an investigative or prosecutorial role, which the court is not supposed to do.

How this will affect further investigations by the Judicial Conduct Board remains to be seen. This could also potentially taint any criminal investigations that are going on. The court’s investigation is not private, but a Judicial Conduct Board investigation is private, at least until a judicial complaint is filed with the Court of Judicial Discipline.

The Supreme Court’s role does raise some serious issues and concerns of a constitutional dimension about what the true role of the Supreme Court is. It also potentially raises issues that could undermine future prosecutions due to the Supreme Court’s exceeding its authority without any rules and regulations to guide such conduct.

One can perhaps understand the Pennsylvania Supreme Court’s and the chief justices’ desire to preserve their legacy and/or to provide public confidence in the court systems. That is commendable. But the methodology can undermine that very purpose. Only time will tell as to whether or not conduct by the Supreme Court may have tainted these investigations in some fashion. But whether it has or hasn’t, it is time for the Pennsylvania Supreme Court to step back and confine itself to the restrictions of its authority as set forth in the Pennsylvania Constitution. There is no such thing as absolute power in Pennsylvania. The constitution defines the limitations of powers and there is concern that the constitution may have been exceeded by the Pennsylvania Supreme Court in this recent private investigation.

Samuel C. Stretton
West Chester, Pa., solo practitioner and ethics columnist for The Legal.