A recent Pennsylvania Court of Judicial Discipline case is highlighting divisions in opinion over whether the Supreme Court has concurrent jurisdiction to address judicial discipline cases.

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

Robert L. Byer, a former judge on the Court of Judicial Discipline and an attorney with Duane Morris in Pittsburgh, called the Court of Judicial Discipline’s opinions in the case of Magisterial District Judge Mark A. Bruno "a judicial insurrection."

Because the Supreme Court has acted, the Court of Judicial Discipline overstepped its bounds, Byer said.

The Supreme Court’s power to act in judicial discipline cases comes from its inherent authority as head of the Pennsylvania judicial system to regulate the conduct of judicial officers, as well as from the King’s Bench power to take jurisdiction of any cases at any stage of the proceeding, Byer said.

Byer said when he reads decisions like In re Mark A. Bruno from the Court of Judicial Discipline, he thanks goodness for the Supreme Court and the rapidity with which the court acted to suspend jurists facing federal criminal charges.

Bruce Ledewitz, a Pennsylvania constitutional scholar and a Duquesne University School of Law professor, said the Supreme Court lost its authority to be involved in judicial discipline cases when the Court of Judicial Discipline was created by constitutional amendment, including its power to enter interim orders of suspension with or without pay.

Constitutional powers cannot be shared, Ledewitz said.

The Supreme Court insists in other contexts that constitutional powers cannot be shared, which is why the General Assembly has no authority over lawyers and only the judicial branch does, Ledewitz said.

"The rule ought to be that all constitutional powers ought to be shared or that no powers ought to be shared," Ledewitz said.

Further, having the Court of Judicial Discipline, instead of the Supreme Court, handle judicial discipline matters is important when one of the justices is in trouble, Ledewitz said.

If the Supreme Court can be involved in judicial discipline matters, it could give the majority of the court the authority to "remove a democratically elected justice with whom they might have policy disagreements or personality conflicts," Ledewitz said.

There also is no reason why the Court of Judicial Discipline should be any less quick in entering interim suspensions than the justices, Ledewitz said.

Lynn Marks of Pennsylvanians for Modern Courts said in an email that she has been troubled by the seemingly overlapping jurisdiction in judicial discipline cases.

"After all, the 1993 constitutional amendment specifically gave jurisdiction to the new discipline system," Marks said. "And we have now seen confusion in a few cases concerning interim suspensions. But perhaps this is the way the system is supposed to work: The Supreme Court, through its supervisory powers, can act quickly when something occurs like an indictment, and later the discipline court, after the Judicial Conduct Board has filed papers and a hearing is held, can take a final interim action."

The constitution was not designed that way, but "it does make the constitutional dichotomy make sense," Marks said.

In the wake of his federal indictment, 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 May 24 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 lay-member 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.

John S. Summers and Rebecca S. Melley of Hangley Aronchick Segal Pudlin & Schiller wrote in an article this winter in the Pennsylvania Bar Association Quarterly that the Supreme Court’s concurrent jurisdiction stands the appellate process on its head so that the justices are "influencing the trial court in a way that disturbs the normal impartiality that the trial court is expected to bring to the adjudication of a matter."

The Hangley Aronchick lawyers also argued that concurrent jurisdiction undermines the right of a review by a neutral appellate court and reduces the institutional authority of the Court of Judicial Discipline.

William Lamb of Lamb McErlane in West Chester, Chester County, a former Court of Judicial Discipline judge and former interim Supreme Court justice, said that "as far as the constitution is concerned, the Supreme Court of Pennsylvania is the highest authority in the commonwealth. If they make a decision with respect to a particular issue, that’s a decision we all have to respect."

The Supreme Court is more active than it was in the past in judicial disciple matters because the court gets a lot of criticism about how it handles matters and there are strong issues of public confidence in the system that go unaddressed without the justices taking action, Lamb said.

Not only do the justices have the right to do what they are doing but they have the responsibility, Lamb said.

Bruno’s counsel, Samuel C. Stretton, said there is no question that the Supreme Court has supervisory authority over courts and lawyers, which is the whole basis of judicial independence.

But the constitutional amendments that created the constitutional Court of Judicial Discipline and the Judicial Conduct Board as prosecutor of discipline cases also gave the Supreme Court limited right of appellate review, not the right to be involved in interim suspensions, Stretton said.

"They don’t have the power anymore. … They’re turning the constitution upside down," Stretton said. "That’s why Bruno has created such a constitutional crisis. … The court that used to have the power is calling the shots, unfortunately. You can’t do that in a constitutional form of government."

Stretton writes an ethics column for the Law Weekly.

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