The dispute between the Court of Judicial Discipline and the state Supreme Court over which body has the power to suspend judges has been ongoing since the CJD was created more than 20 years ago.
According to many ethics experts who spoke with The Legal, last week’s decision over the suspension of a former Philadelphia Traffic Court judge has put an end to the dispute.
Not only did the justices reject the CJD’s attempts to limit their power, but they reaffirmed the court’s ability to dispense judicial discipline on its own.
On Oct. 1, the justices ruled in In re Magisterial District Judge Bruno that, while the CJD is responsible for carrying out much of the judicial discipline in the state, the high court remains the ultimate arbiter regarding disciplinary decisions, and has the power to intervene in any case through its King’s Bench authority.
The court’s majority opinion cautioned that it will refrain from using its power to intervene in disciplinary issues unless they involve extraordinary circumstances, but reaffirmed that the justices had the ultimate discretion.
“The exercise of King’s Bench authority is not limited by prescribed forms of procedure or to action upon writs of a particular nature; the court may employ any type of process or procedure necessary for the circumstances,” Chief Justice Ronald D. Castille said.
Justices J. Michael Eakin, Max Baer and Correale F. Stevens joined Castille’s lead opinion while the remaining justices each filed concurring opinions. In an unusual move, Castille also filed an additional concurring opinion.
Magisterial District Judge Mark A. Bruno had been charged in connection with alleged case-fixing in the former Philadelphia Traffic Court. In July, he was acquitted of the charges, and his suspension was vacated in late August.
The dispute between the Supreme Court and the CJD in the Bruno case arose after the CJD issued an order in May 2013 suspending Bruno with pay. Some three months earlier, the justices had suspended Bruno without pay.
According to Castille, Bruno and the Judicial Conduct Board had argued that 1993 amendments to the state constitution creating the board and the CJD stripped from the Supreme Court its ability to discipline judges; however, the Administrative Office of Pennsylvania Courts contended that the high court retained the ultimate disciplinary power.
According to Robert A. Graci, chief counsel of the Judicial Conduct Board, the justices agreed to hear the Bruno case not specifically to resolve the issue facing Bruno, but to address the institutional matter regarding the CJD’s authority to review and carry out recommended sanctions and how that interplays with the Supreme Court’s disciplinary authority.
Graci, and other attorneys who spoke with The Legal, said the opinion established clarity on the courts’ roles.
“The several opinions … all make it clear that the court, under its supervisory authority, still has the authority and power to issue orders, but it’s going to be reserved for those extraordinary circumstances,” Graci said.
The opinions, he said, “resolved that, and ultimately did a great service, particularly to the bench.”
Graci noted that friction between the high court and the CJD arose partly because the justices wanted to act swiftly in the matter, but had not been notified that the CJD was already reviewing Bruno’s case. Graci said he agreed with the concurring opinion written by Baer, which suggested that the bodies notify each other in similar situations.
“In all candor, had I known that the JCB had already filed in the CJD the petition seeking the temporary suspension of Judge Bruno without pay, and that the CJD was prepared to take imminent action thereon, I would have been content to await the CJD’s action, rather than issue our sua sponte interim order,” Baer said.
In the concurring opinions, all justices cautioned against the court frequently delving into disciplinary matters.
In his concurring opinion, Justice Seamus P. McCaffery noted that jurists are especially vulnerable to accusations from “disaffected litigants that are grounded in nothing more than dissatisfaction with the resolution of a case,” and reiterated that he felt the justices should reserve their disciplinary authority for only “truly extraordinary circumstances.”
Justice Debra Todd pointed out that, although the majority’s decision was sweeping, the Supreme Court has no appellate review over disciplinary matters concerning justices, and therefore “it is important to caution that the calculus regarding the extent of our King’s Bench powers may be different when it is a justice’s alleged impropriety that is at issue.”
In his concurring opinion, Justice Thomas G. Saylor said he felt the CJD was better equipped to make factual determinations regarding disciplinary decisions, and that the court should defer to the CJD. If swift action is required to maintain the integrity of the courts, he noted the Supreme Court can exercise its administrative powers to reassign judges into positions that don’t involve presiding over court decisions.
“I believe that it was an error on our part to routinize a practice of interim suspension upon the indictment of judges on felony charges,” he said. “I would incorporate the extraordinary circumstances overlay into the actual holding from the outset of the opinion and scale back on the breadth of the statement of the holding.”
Abraham Reich of Fox Rothschild said while there may be some ambiguity that remains as to what constitutes extraordinary circumstances, there was little question that disciplinary powers were not stripped from the high court when the CJD was created.
“I think Castille had it right. They ultimately have the supervisory authority,” he said. “The notion that the [CJD] has exclusive [jurisdiction] doesn’t seem right.”
However, attorney Samuel C. Stretton, who represented Bruno, said he felt it was clear that the amendments to the constitution put the disciplinary powers solely in the hands of the CJD. Using King’s Bench to circumvent the constitution, he said, sets bad precedent.
“I disagree with the rationale that their King’s Bench authority gave them concurrent jurisdiction,” he said. “It broadens King’s Bench too much.”
Stretton said the court’s reasoning left no place to appeal decisions, and could create confusion. Stretton noted that the high court recently ordered the suspension of two judges from Philadelphia Municipal Court after one of their colleagues pleaded guilty to case-fixing in federal court. However, no orders were issued, which leaves the judges without any official decision to appeal, Stretton said.
“It’s an example of what to expect if the court wants to jump into judicial discipline,” he said. “That’s not the way professional discipline ought to work.”
According to Stretton, disciplinary decisions would best be handled through the CJD, which can perform a full hearing on the issues to ensure that due process requirements are met.
Stretton is a columnist for Legal sibling publication Pennsylvania Law Weekly.
Mark B. Sheppard of Montgomery McCracken Walker & Rhoads said that, while the issue now appears settled as to whether the Supreme Court has the power to discipline judges, the dispute may now shift to issues regarding the parameters of when the justices should discipline judges.
Sheppard said his views on the issues most closely aligned with Saylor. While the majority’s decision is a clear “reaffirmation of the powers of the court to supervise the judicial system,” he said, the court should exhaust its administrative and alternative powers before entering into decisions normally handled by the CJD.
Sheppard said he agreed that there is no mechanism set up to litigate these issues once the justices decide to issue an order sua sponte based in their King’s Bench authority, but he noted that the court needs to retain its supreme powers to ensure that the justice system continues to function properly.
Regardless of where that balance lies, Sheppard said one thing about the opinion is certain: “The court thought long and hard” about its decision.