The Court of Judicial Discipline may have set itself up for a conflict with the Pennsylvania Supreme Court in opinions issued in the case of a magisterial district judge charged with alleged ticket-fixing. The court ruled that the justices are not alone in having the authority to suspend judges in trouble on an interim basis.

In the wake of his federal indictment, Magisterial District Judge Mark A. Bruno was suspended without pay by the Supreme Court. Now the Court of Judicial Discipline has ruled that Bruno should be suspended with pay and that he should receive back pay from February through its Friday order.

Bruno has denied the charges in the federal indictment.

Bruno should be paid during his suspension, said President Judge Bernard L. McGinley in the majority opinion, because the Court of Judicial Discipline had the opportunity to develop a record that the Supreme Court did not, because the state constitution authorizes the Court of Judicial Discipline to issue orders of interim suspension, and because the Supreme Court "recently recognized that authority" for the Court of Judicial Discipline to also suspend judges.

The authority for the Court of Judicial Discipline to enter interim suspension orders was established, McGinley said, when the Supreme Court entered an order suspending former Justice Joan Orie Melvin with pay, the Court of Judicial Discipline entered a later conflicting order for her suspension to be without pay, and the Supreme Court took no further action, "in our view, entirely consistent with and in recognition of this court’s right, authority, and duty to enter such an order."

In a concurring opinion, Judge Charles A. Clement Jr., joined by Judges John R. Cellucci and Carmella Mullen, came out even more strongly than his colleagues in declaring that the authority to suspend judges on an interim basis rests with the Court of Judicial Discipline alone. The majority opinion appears to characterize the authority as co-extensive.

While "we do know that the Supreme Court disagrees with our view that the drafters of the Constitutional Amendment of 1993 [which created the Court of Judicial Discipline] intended that the authority explicitly conferred on the Court of Judicial Discipline … be exclusive," Clement said the amendments "make it clear that it is no longer necessary for the Supreme Court to enter interim orders of suspension … and that, therefore, it should not."

In a footnote, Clement said having two courts filing competing orders and opinions should be avoided because "the struggle for consistency is automatically elevated and clarity in the law is sacrificed."

In another footnote, the concurrence opined, "It is difficult to understand why the Supreme Court should ever involve itself in judicial ethics matters prior to an appeal from the court. To do so undermines the delegation of judicial ethics matters to the court and puts the Supreme Court in the position of having appeared to pre-judge a matter that would otherwise be before it in the ordinary course."

Bruno’s counsel, Samuel C. Stretton, said, "We got a big decision that also helps to clarify which court" has the authority under the state constitution to suspend judges facing pending disciplinary matters. Stretton is a columnist for The Legal.

Robert Graci, chief counsel for the judicial impropriety prosecution body, the Judicial Conduct Board, declined comment on the issue regarding the two courts’ authority to enter interim suspension orders.

Suspending Bruno with pay also is appropriate because the allegations against Bruno place him at the periphery of a "pervasive, expansive, truly impressive conspiracy" of alleged ticket-fixing in the Philadelphia Traffic Court and because the likelihood "of obtaining convictions of this respondent … [is] in serious question," the majority opinion reasoned. Bruno, a Chester County magisterial district judge, was assigned to sit in the Traffic Court when the elected judges were away for training.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the 51-page opinion in In re Bruno, PICS No. 13-1196, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •