The Supreme Court has decided to hear oral arguments on whether it, too, has the authority to suspend jurists, or if that is a power left solely to the Court of Judicial Discipline. The hearing is set for the justices' September docket.
In response to the petition of suspended Magisterial District Judge Mark A. Bruno to vacate the Supreme Court's suspension of him without pay in wake of the Philadelphia Traffic Court ticket-fixing scandal, the high court has scheduled oral argument in the case and reinstated Bruno's pay until it rules on the issues.
In a separate order issued Friday, the Supreme Court suspended all proceedings before a special master related to whether the only sitting Traffic Court judge not to be indicted, Christine Solomon, should be suspended for 90 days for her alleged failure to cooperate in the Supreme Court's internal probe of the Traffic Court scandal. In that order, the court invited the Judicial Conduct Board to intervene in the proceedings to brief the constitutional issues it raised about its authority to investigate such matters. A briefing schedule was issued in that case, but it was not listed for an argument session.
The two orders deal with separate but related components of the state's judicial discipline system. In the Solomon case, the court will be briefed on the JCB's power to investigate and file charges against judges and how that relates to the Supreme Court's role in such discipline. The Bruno case deals with the Court of Judicial Discipline's authority to review and carry out recommended sanctions and how that interplays with the Supreme Court's discipline authority.
The Supreme Court added Bruno's case to its September argument session in Philadelphia and will address three issues: whether the state Supreme Court has jurisdiction to enter orders of interim suspensions of jurists; whether the CJD has exclusive jurisdiction to enter orders of interim suspension of jurists or whether the CJD's jurisdiction is concurrent with the jurisdiction of the Supreme Court; and, if both tribunals act, which order is supreme.
In its order issued Thursday and published Friday afternoon in the Bruno matter, the high court invited the Judicial Conduct Board to participate in the briefing and oral arguments of the matter. The Supreme Court reinstated Bruno's pay retroactive to February 1, the date it suspended him and several other judges charged federally in regard to allegations of ticket-fixing in the Traffic Court.
Robert A. Graci, chief counsel of the JCB, said the board met Friday and decided to accept the court's invitation to be heard in the Bruno case. He said the board may seek to consolidate the briefings and arguments in the Bruno and Solomon cases.
"We welcome the opportunity and the invitation in the Bruno case to participate in that matter so that we can address all of these issues which we think are of significant constitutional importance in the proper administration of the disciplinary apparatus set forth in the constitution involving all of the judges of the commonwealth of Pennsylvania," Graci said.
West Chester, Pa.-based attorney Samuel C. Stretton, a columnist for The Legal, represents both Solomon and Bruno. He said he was happy to see the court will decide once and for all "where the line is drawn between the responsibility of the Court of Judicial Discipline and the supervisory and administrative responsibility of the Supreme Court."
A. Taylor Williams of the Administrative Office of Pennsylvania Courts is handling the cases for the Supreme Court. She wasn't immediately available for comment Friday afternoon.
Judges Michael J. Sullivan, Michael Lowry and Bruno were suspended without pay, according to the February per curiam orders from the Supreme Court. The orders stated the judges could seek relief in the Supreme Court.
Bruno is a magisterial district judge from Chester County who also was appointed to sit in the Traffic Court. He has denied the charges against him.
Several months after the Supreme Court acted, the CJD ruled Bruno should be suspended with pay. In that ruling, members of the CJD made clear their thoughts on their authority to rule on these issues.
Bruno should be paid during his suspension, said CJD 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."