The attorney representing an ousted judge told the state Supreme Court on Tuesday it has the power to rectify what he characterized as “erratic” sanctions in the judicial disciplinary system.
The justices heard arguments in In re Nocella, which involves issues surrounding the removal of former Philadelphia Court of Common Pleas Judge Thomas Nocella for allegedly violating the state constitution and bringing the judiciary into disrepute. Those arguments also encompassed the extent to which the court can review sanctions imposed on judges by the Court of Judicial Discipline.
Last year, the CJD found that Nocella violated the state constitution in the handling of a case in which he was found in contempt of court while working as a lawyer for a political action committee. The court also found that Nocella violated the state constitution, the Pennsylvania Code of Judicial Conduct and that he brought the judiciary into disrepute for failing to disclose all of the cases in which he was a party when he was being rated by the Philadelphia Bar Association’s ratings arm for judicial candidates during his bid for a seat on the Court of Common Pleas bench.
West Chester, Pa.-based Samuel Stretton (who is a columnist for Legal sibling publication Pennsylvania Law Weekly) argued on behalf of Nocella. Stretton told the court that Nocella’s punishment was excessive and that the court should reconsider its standard of review in examining judicial sanctions.
Using the example of a judge punching a police chief outside of a country club and receiving a seven-month suspension, Stretton told the court that the Judicial Conduct Board has issued more lenient sanctions to judges who have committed offenses more serious than Nocella’s. Additionally, he characterized the order to permanently remove Nocella from the bench as “harsh.”
Stretton urged the justices to make policy revisions that would enable them to act in instances where judicial discipline may be too harsh.
“If we have these decisions that are erratic, this court should have the right to step in,” Stretton told the court.
He also said that ceding the matter to the CJD is an abdication of the Supreme Court’s supervisory role.
Stretton added that the misconduct in question occurred before Nocella was elected to the bench.
“With all due respect … this is not the worst case that has come up,” Stretton said.
Justice Debra M. Todd said to Stretton, “When we look at a judge, we ought to be able to expect them to be honest.”
“We have lies here,” Todd said of Nocella’s alleged misconduct, “continuous and rather big lies.”
In response, Stretton said, “Yes, they’re lies, but that should not be the deciding factor.” Stretton asked the court if it would remove every judge for bending the truth and making exaggerations in their campaign ads.
“We could do that,” Chief Justice Ronald D. Castille said.
Stretton once again asked the court to reconsider its standard of review and added that he understood that the penalty for Nocella had to be tough, “but it seems to me that the sanction is too harsh … the court should review this matter in a broader scope.”
Representing the JCB, Elizabeth A. Flaherty reiterated that the Supreme Court does not have the power to intervene in matters of judicial sanctions unless those sanctions are deemed to be unlawful.
“Are you saying we can’t take action in this matter?” Castille asked.
“Yes,” Flaherty said, “I think this is a lawful sanction.”
Justice Max Baer asked Flaherty to consider for argument’s sake that if Nocella received a four-month suspension instead of being permanently removed, could she then argue that the lesser discipline was shocking in that it was too lenient. Flaherty said no.
In terms of the Supreme Court’s standard of review, Flaherty said that the court “has limited review, not subject to alternative interpretation.”
Justice Correale Stevens asked if “a judge issues an obscenity at trial and the judge is removed, as a lawful sanction, we wouldn’t be able to do anything about it?”
Flaherty responded that it would depend on how the judge violated the state constitution.
Justice Seamus P. McCaffery was not present for the arguments in Nocella.
The Legal previously reported that the JCB said Nocella, when seeking an updated evaluation by the bar commission in 2011, did not disclose that he had filed for bankruptcy; that he had been found in contempt of two court orders sought by the Philadelphia Board of Ethics in the campaign finance case; that the Internal Revenue Service had filed liens against him for $358,961 and $110,748; and that there were two judgments entered against him for $923,152 and $306,174, respectively.
The CJD issued its opinion in Nocella in June, detailing its reasoning for applying the sanctions to Nocella.
“We believe it to be beyond dispute that a judge—or one who would be a judge—who is willing to lie—and in official documents … is not one who can be expected to encourage, indeed to insist that truth be spoken in his courtroom,” Judge Robert J. Colville had said in the opinion. “This respondent’s relationship with truth and his regard for its importance in his everyday life is gruelingly illustrated” in the instance regarding the political action committee.
President Judge Bernard L. McGinley dissented from the order and said he would have suspended Nocella for four months with half-pay and placed him on probation until his retirement.
P.J. D’Annunzio can be contacted at 215-557-2315 or firstname.lastname@example.org. Follow him on Twitter @PJDAnnunzioTLI. •