CHIEF JUSTICE SAYLOR.
This is an appeal from an order of the Court of Judicial Discipline (the "CJD") removing Appellant from office. One issue we are asked to address is whether that tribunal must apply the doctrine of stare decisis when sanctioning a jurist.
The underlying facts were developed at trial before the CJD and via stipulation.
In September 2011, Appellant called Waters regarding Judge Adam Beloff.
In June 2012, Appellant asked Waters for advice on how her son, Ian Rexach, should proceed relative to a tax judgment. By way of background, Rexach owned a barbershop in Philadelphia. The city filed a code enforcement complaint against him for failure to pay the city's business privilege tax. When he did not appear for the hearing, a $5,000 default judgment was entered against him. He filed a pro se petition to open the judgment, which was denied due to the lack of a meritorious defense. Thereafter, a phone conversation occurred between Appellant and Waters, which included the following excerpt:
Stipulation ¶ 19. From the above, Appellant understood that Waters would talk to Segal about the petition in her son's case. Appellant did not attempt to dissuade him from doing so. See id. ¶ 20.
Appellant learned that Segal would not be presiding over these types of petitions after June 29, 2012. Seeking to ensure that Segal presided over her son's petition, on June 29, 2012, Appellant called Waters to encourage him to intervene, as follows:
Id. ¶ 27. From this conversation, Appellant understood that Waters would call Segal on behalf of Appellant's son in regard to the petition for reconsideration. See id. ¶ 28.
That day, Segal reviewed the petition for reconsideration and issued a rule to show cause why the relief requested should not be granted. Although Segal did not preside over Rexach's case thereafter, on July 1, 2012, she called Waters to advise him that she "took care of it" and to "tell her it's done." Waters then called
In 2013, FBI agents interviewed Appellant in the presence of her attorney. During the interview, Appellant denied that judges call each other asking for favors. She stated, "We don't do that here at all." Stipulation ¶ 41. She added that she would never call another judge to request a favor for a family member. See id. ¶¶ 42-43. Further, when asked in the interview what she would do if a family member was in trouble, Appellant stated that "they would be on their own." N.T., Sept. 8, 2016, at 187.
In March and May of 2015, the Judicial Conduct Board sent Appellant informal letters of inquiry concerning her contacts with other judges. At the time, Appellant was unaware that her conversations with Waters had been recorded. In her written responses, Appellant made several representations which were inconsistent with the content of the recorded phone conversations. For example, she indicated that: she only had one conversation with Waters, limited to procedural advice about a petition for reconsideration in the City of Philadelphia v. Rexach matter; after advising her son to file a motion for reconsideration, she had no further contemporaneous knowledge about the case; she never requested preferential treatment in the Rexach case and, to her knowledge, none was given; Waters never offered to request special consideration from Segal; Appellant was not aware of whether Waters actually had contacted Segal, and if Waters did contact Segal, it was without Appellant's knowledge. See id. ¶¶ 44-55.
After Appellant met with a federal prosecutor and heard the recordings of the intercepted conversations, she supplemented her written responses to the Board, admitting that Waters offered to speak to Segal on her behalf, and that she did not discourage him from taking such action. Appellant also conceded that she had placed a second call to Waters asking him to request that Segal consider the Rexach matter promptly, and that Waters eventually told Appellant it was "taken care of." Appellant added, "I should have stayed out of the matter completely." Id. ¶¶ 56-61.
Finally, despite her knowledge that Waters engaged in ex parte communication with Segal, Appellant did not report his misconduct to the Board. Id. ¶62.
In June 2016, the Board filed an amended complaint with the CJD alleging that Appellant had violated Article V, Sections 17(b) and 18(d)(1) of the Pennsylvania Constitution, as well as several provisions of Pennsylvania's former Code of Judicial Conduct (the "Code"), mentioned below.
The Code provisions at issue were Canons 2A, 2B, and 3A(4), which state:
Code of Judicial Conduct (1974), Canons 2A, 2B, 3A(4).
Appellant filed an omnibus pre-trial motion, which was denied. She elected not to file a responsive pleading, however, at which point the complaint's factual allegations were deemed denied. See C.J.D.R.P. No. 413.
The case proceeded to trial at which the CJD heard the evidence summarized above. In regards to the 2011 call, Appellant testified that she never followed through and contacted Beloff because she "knew it was not the right thing to do." N.T., Sept. 8, 2016, at 218; see also id. at 170-71, 192. When asked about her statements, during the FBI interview, that judges do not call one another and that a family member in trouble would be "on their own," Appellant confirmed she gave those answers, but indicated she thought the questions pertained only to Family Court and that the term "trouble" was limited to criminal charges. See N.T., Sept. 8, 2016, at 185-87. As for the Board's letters of inquiry, Appellant admitted that her responses were incorrect, but she attributed that to a lapse of memory inasmuch as the letters were sent almost three years after the events in question. See id. at 188-90, 210. During her testimony, Appellant acknowledged on several occasions that her conduct was wrong and emphasized that her ethical failing was based solely on a desire to help her son and would never happen again. See, e.g., id. at 192-95.
By opinion and order dated October 20, 2016, the CJD found Appellant in violation of Canons 2A and 2B and, by extension, Article V, Section 17(b) of the Constitution. The court also ruled that Appellant had transgressed Article V, Section 18(d)(1) of the Constitution by engaging in conduct which brought the judicial office into disrepute and prejudiced the proper administration of justice.
In reaching its holdings, the court took note of the Board's position that "the provision of `favoritism' upon ex parte requests, for the benefit of those who are politically connected or are family members or friends of judges or other court employees, has for too long haunted our state judiciary." In re Roca, No. 14 JD 2015, slip op. at 22 (Pa. Ct. Jud. Disc. Oct. 20, 2016) (quoting N.T., Sept. 18, 2016, at 23). In terms of whether Appellant's conduct brought the judicial office into disrepute, the court observed that the standard for such inquiry is based on the reasonable expectations of the public, which include a belief that judicial officers will not make
The CJD made similar underlying findings to support its conclusion that Appellant had prejudiced the proper administration of justice and violated Canons 2A and 2B. See id. at 24-26. However, the court found it unnecessary to reach the question of whether Appellant violated Canon 3A(4), as it viewed the asserted conduct underlying that charge as having been addressed in ruling on the other counts of the complaint. See id. at 26. In this regard, the court explained that, unlike in criminal matters, the full range of sanctions is available based on a single violation, and its discretion in imposing discipline is not grounded on the number of ways the same conduct offended the Constitution or the Code, but on the nature of the conduct together with any mitigating or aggravating circumstances. See id. at 26 (quoting In re Eagen, 814 A.2d 304, 306-07 (Pa. Ct. Jud. Disc. 2002)).
After Appellant waived objections and exceptions to the CJD's ruling, a sanctions hearing was held at which several character witnesses appeared on Appellant's behalf. Appellant also testified, stating that she accepted full responsibility for her actions and apologizing for her misconduct.
The CJD imposed the sanction of removing Appellant from the bench and barring her from holding judicial office in the future. See In re Roca, 151 A.3d 739, 740, 744 (Pa. Ct. Jud. Disc. 2016). The court reviewed the ten non-exclusive factors it routinely considers, and how those applied to the present case.
The court observed, however, that "good character evidence does not undo" unethical behavior, and that the focus of a sanctions decision goes beyond the individual jurist to the "message sent to the public and the effect on the expectation of standards of behavior." Id. (quoting In re Berkhimer, 593 Pa. 366, 374, 930 A.2d 1255, 1259 (2007)). Thus, the CJD noted that the proceedings are not chiefly punitive in nature, but rather, are aimed at protecting citizens from judicial abuse and corruption. As it was clear from the record that Appellant's actions were undertaken voluntarily and with a motive to obtain special judicial treatment for her son, the court determined that she engaged in willful misconduct. The court concluded:
Id. (internal quotation marks omitted).
On appeal, Appellant alleges that the CJD's removal-and-bar sanction is unduly harsh under the circumstances. She requests relief in the form of a lesser penalty such as a six-month or one-year suspension. In this respect, Appellant maintains, first, that this Court is not bound by the state constitutional provision, discussed below, which limits our review of the sanction imposed by the CJD to whether it was lawful. In the alternative, Appellant proffers that the punishment was not lawful because it was inconsistent with that court's prior decisions in cases where the misconduct was not extreme.
The mechanism for disciplining jurists, as reflected in the 1968 state charter, involved this Court acting in the first instance on the recommendations of an investigative body called the Judicial Inquiry and Review Board (the "JIRB"). See, e.g., In re Larsen, 532 Pa. 326, 616 A.2d 529 (1992). The Constitution was materially amended in 1993. In the wake of such amendments, this Court retains supervisory and administrative authority over all of Pennsylvania's courts and justices of the peace, see PA. CONST. art. V, § 10(a), the JIRB no longer exists, and the disciplinary apparatus is separated into distinct prosecutorial and adjudicative functions to be carried out by the Board and the CJD, respectively. See id. § 18(a), (b). Under the new scheme, this Court exercises appellate review of the CJD's final disciplinary orders. See id. § 18(c). See generally In re Bruno, 627 Pa. 505, 521-23, 101 A.3d 635, 644-45 (2014) (summarizing this history).
Per the 1993 amendments, the Constitution is fairly explicit in prescribing the manner of our appellate review:
PA. CONST. art. V, § 18(c)(2).
Pursuant to the above, and in terms of our consideration of the sanction
Appellant contends in her first issue that, after Bruno, we are not constrained by this constitutional text. She reasons that, in Bruno, this Court "amended and limited the powers set forth in Article V, Section 18," insofar as it "found that [its] King's Bench authority transcended the other powers enumerated in the Constitution and the Judicial Code." Brief for Appellant at 54. She therefore asserts that we now have "parallel jurisdiction with full rights to intervene" in a matter involving judicial discipline and, in doing so, to exercise de novo review. Id. at 55.
This is a difficult argument to maintain. It is established that "[t]he Constitution is the fundamental law of our [C]ommonwealth, and in matters relating to alterations or changes in its provisions, the courts must exercise the most rigid care to preserve to the people the right assured to them by that instrument." Commonwealth ex rel. Schnader v. Beamish, 309 Pa. 510, 515, 164 A. 615, 616-17 (1932). Our state charter, which comprises "the Commonwealth's organic law," Driscoll v. Corbett, 620 Pa. 494, 510, 69 A.3d 197, 207 (2013), may be amended "in the manner specifically set forth therein, or a new one may be put in force by a convention duly assembled, its action being subject to ratification by the people, but these are the only ways in which the fundamental law can be altered." Stander v. Kelley, 433 Pa. 406, 410-11, 250 A.2d 474, 476 (1969) (emphasis altered, internal quotation marks, citation, and footnote omitted). Further, "[n]othing short of a literal compliance with this mandate will suffice." Pa. Prison Soc'y v. Commonwealth, 565 Pa. 526, 538, 776 A.2d 971, 978 (2001) (internal quotation marks and citation omitted). Therefore, we differ with Appellant's evident premise, that a decision of this Court is capable of "amending" constitutional text such as the prescribed review standard as set forth in Article V, Section 18(c)(2).
Additionally, Appellant misinterprets Bruno. That case related to the interplay between this Court's supervisory powers over the Unified Judicial System (including its employees) and the CJD's constitutionally-based authority — in relation to a judicial officer charged with a felony — to issue a non-appealable order suspending the jurist on an interim basis. See PA. CONST. art. V, § 18(d)(2). The particular dispute arose when the CJD suspended Judge Bruno with pay after this Court had suspended him without pay. The conflict between the two suspension orders, in turn, raised the issue of whether, in light of the CJD's interim-suspension authority, this Court's supervisory powers still included the ability to suspend a jurist charged with a felony.
The Bruno Court ultimately held that, pursuant to this Court's King's Bench authority, our power of interim suspension subsists alongside that of the CJD, but it should be reserved for "extraordinary circumstances." Bruno, 627 Pa. at 583, 101 A.3d at 682.
Appellant reads Bruno as implying that, where the integrity of the judicial system demands it, this Court can assert its supervisory power so as to disregard the standard of review set forth in Article V, Section 18(c)(2). Such a precept cannot reasonably be derived from Bruno. Nothing in Bruno suggests that this Court's supervisory responsibilities can justify acting contrary to, overriding, or essentially re-writing the text of the Constitution. Rather, Bruno explained that the CJD's suspension powers, as set forth in the Constitution, are not made to be exclusive. By contrast, the Court explained, where the Constitution gives explicit "direction[s] as to how a thing is to be done," those directions must be followed to the exclusion of all other means that may be deemed "better or more convenient." Bruno, 627 Pa. at 579 n.24, 101 A.3d at 680 n.24 (quoting In re Bowman, 225 Pa. 364, 367, 74 A. 203, 204 (1909)).
Even more to the point, in issuing its interim suspension order this Court emphasized it was not punishing the jurist or imposing disciplinary sanctions, and that the constitutionally assigned standard for this Court's review of the CJD's final order of discipline remained unaffected. See id. at 591, 101 A.3d at 687. See generally Commonwealth v. Russo, 388 Pa. 462, 471, 131 A.2d 83, 88 (1957) (affirming that this Court has "no right to disregard or ... erode or distort any provision of the Constitution, especially where, as here, its ... language make[s] its meaning unmistakably clear"). Therefore, our present standard of review, as prescribed by Section 18(c)(2), remains unaffected by any aspect of Bruno.
The Constitution sets forth the sanctions which the CJD may impose upon a judicial officer subject to disciplinary action:
PA. CONST. art. V, § 18(d)(1); see also id. § 18(b)(5) ("A decision of the [CJD] may order removal from office, suspension, censure or other discipline as authorized by this section and as warranted by the record.").
There is no dispute that this authorizes the CJD to remove a judge from office upon a finding that he or she committed misconduct, either by violating a canon or rule prescribed by this Court, or by conduct which, inter alia, brings the judicial office into disrepute or prejudices the proper administration of justice. Nor is there any challenge to the conclusion that Appellant did, in fact, violate rules of conduct, bring the judicial office into disrepute, and prejudice the proper administration of justice: as noted, Appellant waived
Nevertheless, Appellant posits that the sanction of removal was not lawful in light of precedent and the facts of this case. She relies on CJD decisions in which a lesser sanction was imposed for misconduct which she views as equivalent to (or worse than) her own. Her argument rests on the premise that the CJD acts unlawfully when it sets a penalty which is out of proportion to those imposed in previous, similar cases. This reasoning implicates the issue we framed, in terms of stare decisis, for oral argument. See supra note 6. We will address the question on such terms, and — for completeness — on the terms framed by Appellant with regard to proportionality and the record.
"The doctrine of stare decisis maintains that for purposes of certainty and stability in the law, `a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.'" Stilp v. Commonwealth, 588 Pa. 539, 620, 905 A.2d 918, 966-67 (2006) (quoting Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 394, 100 A.2d 595, 598 (1953)). In this formulation the terms "conclusion" and "in the law" are particularly meaningful because stare decisis relates primarily to rules or pronouncements of law. See, e.g., Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 2016, 138 L.Ed.2d 391 (1997) ("The doctrine of stare decisis... reflects a policy judgment that `in most matters it is more important that the applicable rule of law be settled than that it be settled right'" (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 S.Ct. 815 (1932) (Brandeis, J., dissenting))); Estate of Grossman, 486 Pa. 460, 470, 406 A.2d 726, 731 (1979) (reciting that stare decisis "permits the orderly growth processes of the law to flourish" (internal quotation marks and citation omitted)); 20 AM. JUR. 2D Courts § 129 ("For a court to apply a precedent as stare decisis, there must have been a judicial opinion on a point of law.").
By contrast, the above-quoted provisions of the Pennsylvania Constitution do not reflect an intent that the discipline imposed in one case should become precedent for later cases. Instead, they give wide latitude to the CJD in arriving at the appropriate discipline upon a predicate finding that a jurist violated a canon or rule, or Section 17 or 18(d)(1) of Article V. Furthermore, while legal rules have developed to guide a sentencer's discretion when imposing a penalty in the distinct, albeit somewhat analogous, arena of criminal sentencing, see generally Graham v. Collins, 506 U.S. 461, 488-89, 113 S.Ct. 892, 909-10, 122 L.Ed.2d 260 (1993) (Thomas, J., concurring) (discussing the impact of stare decisis upon procedural requirements surrounding imposition of the death penalty), Appellant does not forward
The concept that the penalty decided upon by the CJD should be subject to a proportionality requirement is not without some appeal. In some jurisdictions where, as with the pre-1993 JIRB-based framework, the commission makes a recommendation to be acted on de novo by the state supreme court, that court expressly takes precedent into account. See, e.g., Comm'n on Judicial Performance v. Boone, 60 So.3d 172, 185 (Miss. 2011) (reciting that the appropriateness of the sanction recommended by the judicial performance commission is assessed with reference to six factors, including whether there is any case law on point).
The difficulty for Appellant is that no such mandate is contained, or even suggested, in Article V, Sections 18(c)(2) and 18(d)(1). For us to forge a path along the lines suggested by Appellant, we would have to overlay upon those provisions a comparative-sanctions regime that cannot fairly be gleaned from their text.
In light of this constricted review and the lack of constitutional language tending to limit or guide the CJD in arriving at the appropriate discipline, the CJD has wide discretion to fashion the appropriate penalty once it finds a predicate violation. See, e.g., Merlo, 619 Pa. at 24, 58 A.3d at 15 (rejecting an argument similar to Appellant's, namely, that the sanctions imposed were "unlawful because they are greater than those imposed in other cases"). Moreover, this Court has clarified that "[s]imilarity of misconduct does not require identicality of sanction, for there are other factors that bear on that decision, including mitigating and aggravating considerations and how a particular jurist's misconduct undermines public confidence in the judiciary." Id. at 24, 58 A.3d at 14-15 (quoting In re Lokuta, 608 Pa. 223, 262, 11 A.3d 427, 450 (2011)).
In re Crawford, 245 Wis.2d 373, 629 N.W.2d 1, 11 (2001); accord Broadman v. Comm'n on Judicial Performance, 18 Cal.4th 1079, 77 Cal.Rptr.2d 408, 959 P.2d 715, 734 (1998) ("Proportionality review based on discipline imposed in other cases... is neither required nor determinative. The factual variations from case to case are simply too great to permit a meaningful comparison in many instances."). See generally Cynthia Gray, A Study of State Judicial Discipline Sanctions 81-82 (Am. Judicature Soc'y 2002) (enumerating 39 factors which courts have identified as relevant to the selection of an appropriate sanction, divided into the following categories: the nature of the misconduct; the extent of the misconduct; the judge's culpability; the judge's conduct in response to the initiation of disciplinary proceedings; and the judge's record).
It follows from the discretionary nature of the CJD's discipline determination that some degree of variance is inevitable. The CJD will always be guided by its institutional obligation to protect citizens from improper judicial behavior, deter future judicial misconduct, protect the integrity of the Commonwealth's judicial system, and re-establish the probity of, and public trust in, the court affected by the misconduct in question. This Court has repeatedly stated that imposition of discipline "not only punishes the wrongdoer, but also repairs the damaged public trust and provides guidance to other members of the judiciary regarding their conduct." Berkhimer, 593 Pa. at 375, 930 A.2d at 1260 (internal quotation marks and citation omitted).
As well, a judge who commits misconduct after other judges have been sanctioned for similar misconduct has the benefit of the CJD's earlier decisions. As a result, "it is not unreasonable for the second, third, or fourth judge who commits a particular type of misconduct to receive a more severe sanction than the first judge who did so." Gray, A Study of State Judicial Discipline Sanctions 66; see also id. at 66-67 (documenting a trend by the Mississippi Supreme Court of increasingly severe discipline for ticket fixing, culminating in the removal of a jurist after the court's "prior attempts to send a strong message to judges concerning ticket-fixing had `fallen on deaf ears" (quoting Comm'n on Judicial Performance v. Chinn, 611 So.2d 849, 857 (Miss. 1992))); accord In re Waddick, 232 Wis.2d 733, 605 N.W.2d 861, 866 (2000) (per curiam) (indicating that a harsher sanction was appropriate than in a prior case involving similar misconduct, in part, because the judge had the benefit of the court's prior decision "to appreciate how seriously the court views" that type of misconduct). Therefore, the CJD's view of the appropriate sanction for a particular type of misconduct may be adjusted as time and experience help to shape that tribunal's understanding of the
Thus, while the CJD is certainly capable of consulting prior decisions as a guide to the proper discipline for a given jurist, neither the Pennsylvania Constitution nor any other legal authority which has been brought to our attention requires it to impose sanctions which are proportional to the punishment meted out in earlier cases involving similar misconduct.
Appellant also argues that removal is "extremely harsh" and "unwarranted under the facts of this case." Brief for Appellant at 50, 58. Although she does not reference Article V, Section 18(b)(5) as such, her contention implicates that paragraph's indication that the CJD may "order removal from office, suspension, censure, or other discipline as authorized by this section and as warranted by the record." PA. CONST. art. V, § 18(b)(5) (emphasis added). Because the CJD may lawfully impose discipline warranted by the record, the unavoidable corollary is that a sanction which is not warranted by the record is not lawful and, as such, may be disapproved by this Court.
We view this as a limitation on the concept that we must so limit our review that the only question we address, in terms of the sanction, is whether it falls into a category which is theoretically "available" to the CJD. See, e.g., Berkhimer, 593 Pa. at 375, 930 A.2d at 1260 (indicating that removal was a lawful sanction because the Constitution "sets forth removal as an available sanction for bringing disrepute upon the judicial office"). The "available" litmus, standing alone, would be very broad, particularly in view of the open-ended categorization of the forms of discipline that the CJD may mete out. See PA. CONST. art. V, § 18(d)(1) (stating that a jurist who commits misconduct may be suspended, removed from office, "or otherwise disciplined"); id. § 18(b)(5) (containing similar language couched in terms of any "other discipline" authorized by Section 18). Hence, under the warranted-by-the-record prerequisite, this Court is able to perform a final check in cases of an infraction met with an unreasonably harsh penalty completely out of proportion to the misconduct involved.
With the above principles in mind — and regardless of whether we would have removed Appellant from office if we were deciding on the appropriate sanction in the first instance — we ultimately reject Appellant's contention that her removal from office was unwarranted by the record in this case. As the CJD pointed out, although Appellant at first only sought procedural advice from Waters, via ex parte communications she eventually solicited and accepted the assistance of both Waters and Segal to obtain special consideration for her son's court case — consideration which other litigants would not have had available. In the context of this controversy it is uncontested that Appellant's actions prejudiced the proper administration of justice and brought the judicial office into disrepute. Against such backdrop it was not unreasonable for the CJD to conclude that Appellant's removal from the bench was an appropriate sanction in light of all of the facts of the case.
Notwithstanding the above, Justice Donohue, in dissent, would read into the constitutional text a requirement of proportionality as between sanctions imposed in distinct, unrelated cases. To bring such requirement within our standard of review, the dissent suggests discipline imposed by the CJD that is not proportional to that imposed in other, similar cases is unlawful.
We respectfully differ with the dissent's premise. To provide context, we consider how the law has developed within the context of one of the most prominent punitive regimes: criminal sentencing. In that arena, a distinction has been drawn between comparative proportionality review and inherent proportionality review. See, e.g., Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426, 438 (1997), abrogated on other grounds, Commonwealth v. Burke, 566 Pa. 402, 412-13, 781 A.2d 1136, 1142 (2001). Under comparative review, an appellate court "asks whether the punishment for a specific crime is applied consistently in similar cases[.]" Id. Comparative review is not required by the Constitution. See Pulley v. Harris, 465 U.S. 37, 53, 104 S.Ct. 871, 881, 79 L.Ed.2d 29 (1984).
Inherent proportionality review, by contrast, asks whether the punishment is grossly disproportionate to the crime and, as such, violates the Eighth Amendment's prohibition of cruel and unusual punishment. See Pulley, 465 U.S. at 41-42, 104 S.Ct. at 975; Thompson v. Parker, 867 F.3d 641, 653 (6th Cir. 2017) (describing inherent-proportionality review as "comparing the severity of the sentence to the gravity of the crime").
As a comparative-review regime is not imposed by constitutional or statutory law, the question is whether it is required by common law, as the dissent posits. The dissent articulates that Pennsylvania has a "common law tradition," and that the CJD has a "place within our common law system." Dissenting Opinion, at 1204. The dissent concludes from these two predicates that "the CJD must follow its own precedent in fashioning and imposing sanctions, and we must review the sanctions it imposes in the same light." Id. It is notable, though, that the dissent does not reference
In light of the above, we disagree with the dissent's effort to transform the doctrine of stare decisis into a requirement of comparative-proportionality review in regard to judicial discipline. We recognize that inherent proportionality review is appropriate to allow for the disapproval of a sanction grossly disproportionate to the underlying conduct. However, as in criminal sentencing — where liberty is at stake — there is nothing in our decisional law suggesting courts must undertake an analysis of distinct cases with inevitably different underlying facts to impose a vague "stare decisis" overlay onto the CJD's discretionary decisions. As we have explained, the framework for limited and deferential appellate review of the CJD's discretionary decisions is set forth in the state charter and embedded in this Court's precedent. That framework does not require comparative proportionality on the CJD's part, or review for the same by this Court.
In her Concurring and Dissenting Opinion, Justice Todd criticizes us for allowing for such final-check review under the lawfulness inquiry, labeling it as "expansive" and expressing that it could lead to this Court "routinely weighing in on the appropriateness of the sanction imposed by the CJD and substituting its judgment for that of the CJD[.]" Concurring and Dissenting Opinion at 1196. Thus, we repeat what we have already emphasized: (a) this Court does not substitute its concept of the appropriate penalty for that chosen by the CJD; and (b) an unwarranted-by-the-record penalty is limited to one which is completely out of proportion to the underlying misconduct.
To the extent the concurrence indicates that the warranted-by-the-record mandate is solely directed at the CJD and does not pertain to the proper scope of this Court's review, see id. at 1195-96, we note that any discipline imposed by the CJD which fails to comport with its own constitutional limitations is necessarily unlawful.
Separately, the concurrence asserts that it is inappropriate for us to assess the meaning of the constitutional phrase, "warranted by the record," absent the issue having been expressly raised and discussed by the parties. See id. at 1195-96. As Justice Todd acknowledges, however, Appellant states in her proportionality argument that her discipline is overly harsh and unwarranted by the underlying facts (i.e., the record). This subsumes a claim of "inherent disproportionality," as discussed above. As Appellant has raised the issue, we cannot avoid determining whether she is presently entitled to appellate relief on that basis. To reach such a determination,
Notably, we are an appellate court and, as such, the scope of our appellate jurisdiction is cabined by the constitutional text. See generally PA. CONST. art V, § 2(c) (stating that this Court has such jurisdiction as is "provided by law"). Ascertaining boundaries on appellate jurisdiction is a task which appellate courts routinely undertake sua sponte. See Commonwealth v. Saunders, 483 Pa. 29, 32 n.2, 394 A.2d 522, 524 n.2 (1978); see also Commonwealth v. Beasley, 559 Pa. 604, 608, 741 A.2d 1258, 1261 (1999); accord, e.g., Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 43 (1st Cir. 1988) (considering the propriety of a federal Rule 54(b) certification sua sponte because "the issue implicates the scope of our appellate jurisdiction"); Braswell Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1336 (4th Cir. 1993) (same); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997) (same); Province v. Province, 196 W.Va. 473, 473 S.E.2d 894, 899 n.11 (1996) ("We are duty bound to take up the jurisdictional issue sua sponte, because it implicates the scope of our appellate jurisdiction.").
By way of rejoinder, the concurrence draws a distinction between jurisdiction and authority and asserts that this case concerns only the latter. See Concurring and Dissenting Opinion, at 1197-98. We respectfully disagree for the reasons mentioned above, most notably, that we are concerned with whether the merits of any inherent-disproportionality argument are cognizable within our appellate function in judicial discipline matters — a jurisdictional question.
For the reasons given, the penalty imposed by the CJD was lawful. That being the case, we lack authority to overturn it.
Accordingly, the order of the Court of Judicial Discipline is affirmed.
Justices Baer, Wecht and Mundy join the opinion.
Justice Baer files a concurring opinion.
Justice Todd files a concurring and dissenting opinion.
Justice Donohue files a dissenting opinion.
Justice Dougherty did not participate in the consideration or decision of this case.
JUSTICE BAER.
I join the majority opinion in full. I agree with the majority that Article V, Section 18(c)(2) of the Pennsylvania Constitution directs this Court to review a judicial sanction imposed by the Court of Judicial Discipline ("CJD") to determine whether the sanction is "lawful." PA. CONST. art. V., § 18(c)(2).
I write separately to comment upon the majority's observation that the imposition
JUSTICE TODD.
I join the majority with the exception of its determination regarding our Court's power to review a Court of Judicial Discipline ("CJD") order on the basis of whether the sanction is "warranted by the record" pursuant to Art V, § 18(b)(5). Majority Opinion at 1190-91. Initially, I do not believe this issue was properly preserved and argued. Rather than addressing this issue, I would await targeted advocacy before deciding this significant question of the breadth of our Court's power of review. Moreover, and related thereto, I have serious concerns regarding the wisdom of our Court's review under such a warranted-by-the-record standard, given the language of the Constitution regarding our review, the history of that provision, and the resultant sweeping expansion of this Court's involvement in CJD's sanctions.
First, I do not believe this issue is properly before us. Appellant Angeles Roca does not raise Art V, § 18(b)(5) as a basis for our review in her questions presented, does not suggest such review in her statement of the scope and standard of review, and does not develop in any way the idea that our "lawfulness" review includes consideration of whether the sanction is supported by the record. At best, and as noted by the majority, Appellant contends her sanction is "unwarranted under the facts of this case, is extremely harsh and excessive and absolutely contrary to existing case law." Appellant's Brief at 49. In making these bald assertions, however, she makes no legal argument grounded on the constitutional provision on which the majority
Second, I have serious concerns about divining our Constitution to provide such broad warranted-by-the-record review. First, the constitutional language regarding our Court's review of a jurist's ultimate sanction is clear and limited: we review CJD decisions for "whether the sanctions imposed were lawful." Art V, § 18(c)(2). The majority, citing our consistent prior precedent, comes to the reasonable conclusion that "lawful" is the equivalent of "available." See, e.g., In re Merlo, 619 Pa. 1, 58 A.3d 1 (2012); In re Lokuta, 608 Pa. 223, 11 A.3d 427 (2011); In re Berkhimer, 593 Pa. 366, 930 A.2d 1255 (2007). However, the majority does not stop there, but cross-references the mandate in Section 18(b)(5), which is directed at the CJD, and concludes that this Court must also review for whether the sanction is "warranted by the record" as an "unavoidable corollary" to the CJD's constitutional command. Majority Opinion at 1190-91. The existence of distinct constitutional language — directed at the CJD in Section 18(b), and directed at this Court in Section 18(c) — raises significant questions about whether such review is, or should be, part of our lawfulness review.
Further, the 1993 amendments brought to Pennsylvania a significant overhaul of the process for disciplining jurists, created the independent CJD, and circumscribed this Court's review of the discipline of judges; indeed, the amendments stripped our review authority entirely where a Justice is the subject of the discipline. See Pa. Const. art. V, § 18(c)(1). These amendments to our Constitution thus suggest the framers envisioned a more cabined review by our Court, rather than the more expansive one conceived by the majority.
Moreover, the ramifications of our Court reviewing for whether a sanction is "warranted by the record" gives me pause. Such review gives our Court significant power over CJD's decisions, and could lead to our Court routinely weighing in on the appropriateness of the sanction imposed by the CJD and substituting its judgment for that of the CJD under the guise of appellate review — as if the CJD were merely an advisory board. This could severely erode the independence of the CJD. Indeed, the majority's interpretation of a warranted-by-the-record review seemingly results in a standard of review more akin to that of abuse of discretion or even de novo — standards which would appear to be in conflict with the express constitutional language seemingly limiting our review.
Finally, the majority's tack to reach the warranted-by-the-record issue by deeming it a jurisdictional matter merits comment. Majority Opinion at 1193-94. First, the majority's discussion regarding the "scope of appellate jurisdiction" and its claim that we can thus reach the warranted-by-the-record issue sua sponte, constitutes obiter dicta if, indeed, as asserted by the majority,
Furthermore, the majority's assertion that we may raise this issue sua sponte, is misplaced, as it conflates concepts of a court's appellate jurisdiction with the scope and standard of its review. Specifically, "[j]urisdiction over the subject matter is conferred solely by the Constitution and laws of the Commonwealth. The test for whether a court has subject matter jurisdiction inquires into the competency of the court to determine controversies of the general class to which the case presented for consideration belongs." In re Administrative Order No. 1-MD-2003, Appeal of Troutman, 594 Pa. 346, 936 A.2d 1, 5 (2007) (citations omitted). It is foundational that jurisdictional questions may be raised sua sponte. However, the jurisdiction of our Court — the competency of our Court to review CJD decisions involving a judge or magisterial district judge — is plainly answered in Article V, § 18(c)(1) ("A judge or justice of the peace shall have the right to appeal to the Supreme Court in a manner consistent with rules adopted by the Supreme Court;").
As is evident from the above, the issue raised by the majority does not go to subject matter jurisdiction. Rather, it implicates the "manner of our appellate review" of CJD sanctions, i.e., our standard of review — be it de novo (as asserted by Appellant), limited to whether the sanction is available, or something in between as now suggested by the majority. See Majority Opinion at 1184-85. Contrary to the majority's claims, this is not a jurisdictional question because, regardless of what we determine our proper standard of review to be — narrow or broad — and, more specifically, regardless of whether we adopt the majority's warranted-by-the-record review, our Court retains jurisdiction to conduct its review of the CJD's decisions. Stated another way, regardless of the answer to the majority's "jurisdictional" query, we will not dismiss the appeal for wont of jurisdiction. Indeed, this fact is what makes the cases cited by the majority clearly distinguishable from this matter: in those cases, the answer to the jurisdictional question led to either further review by the court, or dismissal. Majority Opinion at 1193-94 (citing, e.g., Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 522, 524 n.2, 525 (1978) (determining question of final order implicates jurisdiction, and finding no final order warranted quashal of appeal); Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258, 1261-62 (1999) (addressing timeliness of PCRA petition sua sponte, and, as no claims satisfied exceptions to the jurisdictional time bar, affirmed denial of petition); Reading Anthracite Co. v. Rich, 525 Pa. 118, 577 A.2d 881, 886 (1990) (two-Justice Court) (finding appeal period goes to "jurisdiction to hear and decide a controversy")).
Moreover, the majority's citation to cases in the unique area of bifurcated sentencing jurisdiction provides no further support, reaffirms a categorical approach to jurisdiction, and actually supports the principle that questions regarding the proper standard of review are not jurisdictional. Certain of the cases cited by the majority stand for the unremarkable principle that jurisdictional issues are categorical — specifically, claims that implicate the discretionary aspects of sentencing are beyond
In short, contrary to the majority's novel jurisdictional "scope" construct, which the majority asserts may be raised sua sponte, questions regarding our Court's proper standard of review of CJD-imposed sanctions are non-jurisdictional and must be adequately preserved and argued by the parties before we may address them. Here, Appellant's unadorned, single-sentence argument, which cites to none of the constitutional provisions the majority interprets, fails to preserve an issue of such constitutional import.
Accordingly, while I join the majority in large measure, I do not believe that the question of whether our Court has the authority to determine that a sanction is "warranted by the record" is before us. I would withhold any such a determination until we are presented with a case raising this issue, with focused advocacy.
JUSTICE DONOHUE.
In this appeal as of right, Philadelphia County Court of Common Pleas Judge Angeles Roca ("Roca") challenges the December 16, 2016 Order and Opinion of the Court of Judicial Discipline (the "CJD") permanently removing her from judicial office.
This Court's standard of review
Pa. Const. art. V, § 18(c)(2). The Majority holds that we are bound only to determine whether a sanction is "lawful" and that our standard of review in this regard is perfunctory, as it only allows this Court to confirm that the sanction imposed by the CJD was "available." See Majority Op. at 188-89, 1190-91. In reaching this conclusion, the Majority indicates that "available" sanctions are those sanctions that the CJD may impose or, to be more specific, those sanctions listed in Article V, Section 18-namely, "removal from office, suspension, censure or other discipline...." Pa. Const. art. V, § 18(b)(5). That sanctions must also be "warranted by the record" is, according to the Majority, the only limitation on the concept that a "lawful" sanction must merely fall "into a category which is theoretically `available' to the CJD." Majority Op. at 1190. I challenge the Majority's interpretation of our standard of review on several grounds.
First, contrary to the Majority, I believe we must engage in meaningful constitutional interpretation regarding our intended standard of review. In interpreting constitutional language, "the fundamental rule of construction which guides [this Court] is
Although this Court has previously equated "lawful" with "available," we have never explained our rationale for excluding any other basis for finding a sanction unlawful. See, e.g., In re Merlo, 619 Pa. 1, 58 A.3d 1, 15 (2012) (observing that Article V, Section 18 "sets forth removal as an available sanction for bringing disrepute upon the judicial office"); In re Berkhimer, 593 Pa. 366,930 A.2d 1255, 1260 (2007) (indicating that removal was a lawful sanction because the Constitution "sets forth removal as an available sanction for bringing disrepute upon the judicial office"). The Majority offers no further insight into the basis for this constitutional interpretation. As a result, this Court's "interpretation" of our standard of review of sanctions imposed by the CJD is unsupported by important language in the provisions of our Constitution and reasoned analysis.
Moreover, according to the Majority's interpretation, our standard of review amounts to nothing more than a cross-reference to confirm that the sanction imposed is one mentioned in Article V, Section 18(b)(5). Therefore, it follows that if the CJD imposes a sanction of "removal from office, suspension, [or] censure,"
It is clear that the primary reason for the amendment, especially in the eyes of the voters, was to separate the investigatory and adjudicatory functions within the disciplinary system, not to insulate this Court entirely from the process of judicial discipline. In fact, the plain language text of the proposed amendment provided to the voters in May 1993 included nothing about this Court's standard of review of sanctions and nothing to suggest that this Court should be shielded from intervention in the judicial disciplinary system generally. See Pittsburgh Post-Gazette, Ballot Questions, 1993 WLNR 2119966 (May 16, 1993).
What is also clear is that Article V, Section 18 grew out of the work and recommendations of the Governor's Judicial Reform Commission, commonly known as the Beck Commission after its chairperson, the Honorable Phyllis Beck. See Pennsylvania Court of Judicial Discipline, A Brief History of the Formation of the Court of Judicial Discipline 1993-1994, at 2.
We granted oral argument to consider the CJD's obligation to adhere to the doctrine of stare decisis in imposing a sanction in order for the sanction to be "lawful." In light of the Majority's disposition of this case — which, in my view, bestows upon the CJD powers that the people of this Commonwealth never intended for it to have — I begin my discussion by anchoring the doctrine of stare decisis within the broader framework of our legal system. Most nomocratic nations, i.e., nations that adhere to the rule of law, follow one of two major legal traditions that act to cabin the discretion of judges: the civil law system or the
The courts of Pennsylvania, however, like courts in forty-nine
Adherence to stare decisis is a hallmark of our common law system. Estate of Grossman, 486 Pa. 460, 406 A.2d 726, 731 (1979) (discussing stare decisis as "the essence of common law courts today as in earlier times"). The doctrine "declares that, for the sake of certainty a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same." Commonwealth v. Mitchell, 588 Pa. 19, 902 A.2d 430, 473 (2006) (citing Burtt's Estate, 353 Pa. 217, 44 A.2d 670, 677 (1945)); see also Buckwalter v. Borough of Phoenixville, 603 Pa. 534, 985 A.2d 728, 730 (2009) (stating that "Pennsylvania follows the doctrine of stare decisis, which promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process") (internal quotations omitted).
Stare decisis, however, is not "an iron mold into which every utterance by a Court, regardless of circumstances, parties, economic barometer and sociological climate, must be poured, and, where, like wet concrete, it must acquire an unyielding rigidity which nothing later can change." Ayala v. Philadelphia Bd. of Pub. Ed., 453 Pa. 584, 305 A.2d 877, 887-88 (1973), superseded by statute on other grounds, Tort Claims Act, 42 Pa.C.S. §§ 8541-8542. Rather, the doctrine demands "thorough examination and deep thought" with respect to prior judicial decisions. Id. (quoting former Chief Justice Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv. L. Rev. 409, 414 (1924)). Thus, a court bound by stare decisis may determine that prior decisions should not be followed as controlling precedent, but it may not do so without first paying proper deference to those decisions. Id. If a court decides to depart from its precedent, it should provide its reasons for doing so.
While the CJD was established to play a unique role within our common law judicial system, it is indisputably situated within that system. It was created within Article V, The Judiciary, of the Pennsylvania Constitution. Pursuant to Article V, jurists (other than Supreme Court justices) are guaranteed an appeal to this Court, the highest court in the judicial branch of government. See Majority Op. at 1184-85 (citing Pa. Const. art. V, § 18(c)(1)). If, as the Majority suggests, the citizens of Pennsylvania had intended to create a court whose decisions need not defer to precedent — a court unlike any other in our Unified Judicial System
The Majority attempts to diminish the importance of stare decisis in the CJD sanctioning context by reference to our criminal sentencing regime where, the Majority suggests, judges have broad discretion to impose individualized punishment. See Majority Op. at 1191-92 (suggesting that the Eighth Amendment to the United States Constitution is the only limitation on such broad discretion). The Majority's line of reasoning obfuscates an important distinction between criminal sentencing and CJD sanctioning. In the context of criminal sentencing, a sentencing judge's discretion is significantly constrained in a variety of ways, and the Eighth Amendment is by no means the only safeguard against judges handing down capricious punishments. Notably, the sentence a judge may impose in a criminal case is expressly circumscribed by statute. For each class of crime, the Sentencing Code sets forth a maximum term of imprisonment or, in the case of financial penalties, the maximum dollar amount a defendant may be fined. The court is not permitted to impose a sentence or fine that exceeds this statutory maximum under any circumstances. See, e.g., Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 (2003) (explaining that sentences exceeding statutory maximum are illegal). In addition to the statutory maximums, judges imposing criminal sentences must also consider the general standards set forth in the Sentencing Code. See 42 Pa.C.S. § 9721(b). Specifically, the sentencing court is required to fashion a sentence that is "consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." Id.
Moreover, pursuant to the Sentencing Code, a judge must consider the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing. In Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007), we explained that "consultation of the guidelines will assist in avoiding excessive sentences and further the goal of the guidelines, viz, increased uniformity, certainty, and fairness in sentencing." Id. at 964. The guidelines "bring greater rationality and consistency to sentences,"
None of the foregoing statutory limitations exist with respect to CJD sanctions. In my view, this fact renders adherence to stare decisis by the CJD imperative because, as demonstrated by the instant matter, no other mechanism exists to curb that court's discretion in sanctioning in any way. Stare decisis alone stands between the CJD's intended status as a fair and rationale Article V court of record, on the one hand, and a tribunal in the ilk of a discredited star chamber, on the other. See supra, n.7.
Contrary to the Majority's implication, Roca is not asking this Court to adopt a strict requirement of proportionality in sanctioning. See Majority. Op. at 1187-88. Instead, her complaint is that the CJD's published opinion is largely devoid of any analysis of prior cases in which sanctions were imposed and makes no effort to explain its deviation from prior case law or otherwise support the sanction imposed.
Roca directs this Court's attention to numerous prior CJD cases imposing sanctions less severe than permanent removal from the bench, while credibly characterizing the misconduct in those cases as either more extreme or analogous to the circumstances in this case. See id. at 63-79.
Given the similarities to the case at bar, the CJD, in keeping with the discretion-limiting doctrine of stare decisis, should be expected, at the very least, to consider its decisions in these three cases when rendering its sanction decision as to Roca. The facial similarities in the facts of these cases suggest that outcomes should be similar. Since they are not, the sanctioned jurists, the rest of the judiciary and the public should know why. Such required analytical reporting by the CJD is the only restraint on its discretion. Otherwise, if it so chooses, the CJD can punish foes and reward friends with impunity.
The Majority expresses a degree of sympathy for Roca's position, but posits that "it is difficult to draw equivalence among distinct cases of judicial misconduct, as the factors involved in each instance will naturally vary." Majority Op. at 1189. This statement is true, but entirely irrelevant to the question of the application of stare decisis. It is axiomatic that no two cases are perfectly identical, but the other courts of this Commonwealth, including this Court, do not as a result abandon all efforts to follow stare decisis. That it may be challenging for the CJD to analyze, analogize or distinguish one case by reference to prior cases does not relieve that court from its inherent obligation to do so.
In re Roca, 151 A.3d 739, 743 (Pa. Ct. Jud. Disc. 2016). Concluding that Roca, therefore, had acted "in derogation of the judicial canons" and had engaged in "willful misconduct" — findings that are common in almost every disciplinary case at the sanctions stage — the CJD ordered Roca's permanent removal from office.
The record in this case makes clear that Roca did not "fix" or control the outcome of any case, and that her misconduct was limited to assisting her son in his efforts to open a default judgment to obtain a hearing on his tax case (in which she had no other involvement). Id. at 62. The city's case against him was not dismissed; in fact, he paid a negotiated tax settlement of $477.00. Majority Op. at 1180-81 (citing Stipulation, ¶¶ 30-39). Moreover, Roca expressed a deeply felt remorse regarding her involvement in the process. As Roca urges, numerous individuals testified as to her excellent character, her "workhorse" ethic, her respect for everyone in the courtroom, and her lack of any prior allegations or incidents of misconduct. Roca's Brief at 63-64.
Nonetheless, the Majority concludes, "it was not unreasonable for the CJD to conclude that Appellant's removal from the bench was an appropriate sanction in light of all of the facts of the case." Majority Op. at 1190. Here, three jurists connected by circumstance — a convicted felon, a repeat
In connection with its "warranted by the record" analysis, the Majority posits that the United States Constitution requires only "inherent-proportionality" review in noncapital criminal sentencing decisions, pursuant to the Eighth Amendment's prohibition on cruel and unusual punishment, but does not, absent "gross disproportionality," require comparison to other sentences. Id. at 1191 (citing federal cases and one Ohio state court case). Arguing for a similarly limited standard of review as to CJD sanctions, the Majority characterizes the CJD's "warranted by the record" requirement as that tribunal's equivalent to an Eighth Amendment "inherent proportionality" requirement, concluding that we may review for gross disproportionality between the judicial misconduct and the sanction imposed, but need not grapple with precedent in doing so. Id. at 1191-92 n.15; see also id. at 1188-89 n.13.
The previously discussed distinctions between our statutorily prescribed criminal sentencing regime and the judicial sanctioning regime set forth in Article V, Section 18 render the Majority's Eighth Amendment analogy entirely inapposite. As an initial matter, when evaluating proportionality challenges to noncapital sentences pursuant to the Eighth Amendment, we employ the three-factor test set forth in Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (providing that the court must inquire into the "the gravity of the offense and the harshness of the penalty"; "the sentences imposed on other criminals in the same jurisdiction"; and "the sentences imposed for commission of the same crime in other jurisdictions"). The threshold inquiry asks whether a comparison between "the crime committed and the sentence imposed leads to an inference of gross disproportionality."
As the Third Circuit has aptly observed, the "narrow proportionality" test set forth in Solem is premised upon a principle of substantial deference "to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." United States v. Rosenberg, 806 F.2d 1169, 1175 (3d Cir. 1986) (quoting Solem, 463 U.S. at 290). It is this principle that "restrains us from an extended analysis of proportionality save in rare cases." Id. (citing Solem, 463 U.S. at 290 n.16, 103 S.Ct. 3001); see also Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d 1268, 1283 (2014) (recognizing, before conducting a Solem analysis, that "acts passed by the General Assembly are strongly presumed to be constitutional" and "that the legislature has the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes") (internal citations and quotations omitted).
In matters of judicial discipline, however, the CJD is not constrained by any principle of deference to the legislature because, as discussed supra, no statutes exist to regulate judicial sanctions. Accordingly, the premise underlying narrow proportionality review in the Eighth Amendment context is inapplicable as to our review of CJD sanctions. Stare decisis necessarily fills the gap as a curb to limit unbounded discretion in imposing sanctions.
Our treatment of attorney misconduct cases reflects a similar principle. In the absence of statutory limitations with regard to sanctioning attorneys, this Court employs stare decisis in every attorney discipline case to determine appropriate
In Cappuccio, for example, we grappled with whether to impose a sanction of disbarment (which is "properly reserved for the most egregious matters") as opposed to "the next most serious sanction, a five-year suspension." Id. at 1239. Noting the significance of attorney Cappuccio's position as a public official at the time he committed the misconduct in question, we conducted a lengthy analysis of his case by reference to our disciplinary decisions in more than five prior cases, comparing and contrasting the nature of the respondent's misconduct to the misconduct in those past matters. See id. at 1239-41. Ultimately, we honed in on our decision in Office of Disciplinary Counsel v. Christie, 536 Pa. 394, 639 A.2d 782 (2004), concluding that, despite the similarities between Cappuccio's misconduct and the facts in Christie, the former should be disbarred:
Id. at 1240-41.
The foregoing is an example of the sort of loyalty to stare decisis I would require the CJD to demonstrate when determining how to sanction jurists. There is no constitutional basis for a discrepancy and it makes no sense that attorneys in this Commonwealth are entitled to the degree of fairness and predictability that flows from adherence to precedent, while our elected judges are, as the Majority holds, stripped entirely of that right.
Again, what is "lawful" is that which is allowed by the law and there are myriad sources of the law. As one example, the Majority's breathtakingly narrow definition of our standard of review is patently violative of the United States Constitution. For example, if an available sanction were challenged as violative of the Equal Protection clause of the United States Constitution, see U.S. Const. amend. XIV, § 1, or on due process grounds, see id., we would
The Majority's reliance on the absence of an express constitutional mandate to follow stare decisis in Article V, Section 18, see id. at 1188-89, is meaningless. As noted, the CJD's obligation to adhere to stare decisis is inherent in its designation as an Article V court of record in Pennsylvania, where all courts of record, including this one, apply stare decisis as a matter of course. No special language is necessary to understand that the CJD must follow its own precedent. Notably, there is no express constitutional mandate for this Court or any other in the unified judicial system to follow stare decisis, but we do so regularly and without exception. Article V, Section 18 also does not mandate that the CJD follow the United States Constitution, but the Majority agrees that it must. See Majority Op. at 1188-89 n.11. Nor does Article V, Section 18 mandate that the CJD is limited by other provisions of the Pennsylvania Constitution, but we know that it is. See supra n.4 (discussing In re Melograne, 571 Pa. 490, 812 A.2d 1164, 1169 (2002)). Like these concepts, adherence to the doctrine of stare decisis is so fundamental to our understanding of the function of courts that inclusion is automatic in the creation of a common law court.
While purporting to uphold "our judicial system ... as the symbol of fairness and justice, and of equal protection dispensed to every citizen," In re Roca, 151 A.3d at 741, the CJD's decision to remove Roca from her elected office, without even a nod to the substantial body of countervailing precedent, compromises these very values. The facial lack of consistency in the imposition of sanctions demonstrated by the prior CJD cases chronicled by Roca in her brief, see supra, pp. 1205-06, does grave damage to any notion that the CJD itself is a symbol of fairness and justice dispensed to every citizen, as judges too are citizens of this Commonwealth. Absent fidelity to stare decisis, the CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate review, this Court has no ability to reverse it. At a minimum, it must be this Court's function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision, the lower court has engaged in a lawful judicial process which by necessity involves the application of stare decisis. In the instant matter, the CJD removed an elected judicial official from office. It imposed this sanction without any meaningful discussion of prior precedent. As such, the sanction imposed in this case is ipso facto unlawful. I would vacate the order imposing sanctions and remand for an opinion in which the CJD thoroughly examines its precedent before imposing a sanction in this case (and would require the same in every case it adjudicates). Accordingly, I dissent.
In re Angeles Roca First Judicial Dist. Phila. Cnty., No. 42 EAP 2016, Order (Pa. Mar. 31, 2017).
The concurrence dismisses the import of these cases and implies that application of jurisdictional limitations leads to either "further review by the court, or dismissal" of the appeal. Concurring and Dissenting Opinion, at 1197. Such a clean dichotomy does not always obtain, however. For instance, we are precluded by statute from reviewing discretionary aspects of a criminal sentence, see 4 Pa.C.S. § 9781(f) — a limitation this Court has recognized as jurisdictional. See, e.g., Commonwealth v. Shiffler, 583 Pa. 478, 484, 879 A.2d 185, 188-89 (2005). In the context of such a challenge, the appeal need not be dismissed entirely, as we retain limited appellate jurisdiction to evaluate whether the Superior Court correctly applied relevant legal principles in its resolution of a challenge to the discretionary aspects, see Commonwealth v. Smith, 543 Pa. 566, 570, 673 A.2d 893, 895 (1996); Commonwealth v. Mouzon, 571 Pa. 419, 427, 812 A.2d 617, 622 (2002) (plurality), and whether the sentence is illegal. See Commonwealth v. Bradley, 575 Pa. 141, 148-49, 834 A.2d 1127, 1131 (2003). Thus, where both discretionary aspects and legal challenges are raised, this Court reviews one but not the other, see Commonwealth v. Walls, 592 Pa. 557, 575, 926 A.2d 957, 968 (2007) (considering matters of law associated with a challenge to discretionary aspects, but remanding to the Superior Court to reassess its discretionary ruling in light of this Court's lack of jurisdiction to do so), because, as noted, the scope of our appellate jurisdiction includes one but not the other.
Morrison v. Com., Dep't of Pub. Welfare, Office of Mental Health (Woodville State Hosp.), 538 Pa. 122, 646 A.2d 565, 570 (1994) (first and last emphasis added) (internal citations omitted). At the very least it must be acknowledged that Article V, Section 18(c)(2) was poorly drafted. It is our goal to discern the intent of the adopters of the Constitutional amendment and our rules of constitutional interpretation require us to give words their ordinary meaning and to give effect to all constitutional provisions. See Jubelirer v. Rendell, 598 Pa. 16, 953 A.2d 514, 528 (2008). A technical legal term in the Constitution, however, must be given the meaning understood by those sophisticated in the law at the time of enactment. See Robinson Twp., Washington Cty. v. Com., 623 Pa. 564, 83 A.3d 901, 956 (2013); cf. 1 Pa.C.S. § 1903(a) (technical words that have acquired a peculiar and appropriate meaning must be interpreted according to that meaning).
As to sanctions, it is clear that "scope of review," as that phrase is used in Article V, Section 18(c)(2), cannot be assigned its peculiar and appropriate meaning. It must have been intended to mean "standard of review," since the constitutional provision is concerned with the question of "how" this Court's review is conducted. Although this Court has recognized that "scope of review" and "standard of review" were "often — albeit erroneously — used interchangeably," we have also made it clear that any confusion regarding the terms was unfounded because, plainly, "the two terms carry distinct meanings and should not be substituted for one another." Morrison, 646 A.2d at 570. Accordingly, throughout this opinion, when discussing the manner in which this Court reviews sanctions, I use the term "standard of review." Regarding our scope of review as to sanctions, I agree with the Majority that Article V, Section 18(b)(5) requires us to review the entire record. See Majority Op. at 1190-91.
Pittsburgh Post-Gazette, Ballot Questions, 1993 WLNR 2119966 (May 16, 1993).
Moreover, in In re Crawford, the Wisconsin Supreme Court noted that while "each case is different, and is considered on the basis of its own facts[,] [t]his individualized approach to discipline ... is guided by some general principles." In re Crawford, 629 N.W.2d at 10. Citing precedent, that Court characterized suspension and removal from office as "drastic measures, generally reserved for very serious or repeated violations of the Code. Factors considered in establishing the length of a suspension, either in aggravation or in mitigation, have included a history of prior judicial misconduct, and the presence of a remorseful and cooperative attitude." Id. In significant contrast, the CJD has not developed any cogent standard against which the misconduct of Pennsylvania jurists may be evaluated and judged, or any set of authoritative factors on which the public and Pennsylvania jurists could know and understand that appropriate sanctions will be imposed.
The Majority's commentary regarding comparative proportionality review for Eighth Amendment purposes in the context of death penalty cases further highlights that discretion must be cabined. While Eighth Amendment comparative proportionality review is not constitutionally required, many states introduced it by statute "in an effort to limit jury discretion and avoid arbitrary and inconsistent results" following the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (determining that previous capital sentencing statutes were unconstitutional because they vested "unguided sentencing discretion in juries and trial judges"). See Pulley v. Harris, 465 U.S. 37, 44, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). In Pulley, the high Court confirmed that statutes not requiring comparative proportionality review may nonetheless satisfy the concerns expressed in Furman if they are "carefully drafted ... [to] ensure[ ] that the sentencing authority be given adequate information ... and standards to guide its use of that information." Id. at 46 (quoting Gregg v. Georgia, 428 U.S. 153, 194, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). The bottom line for Eighth Amendment purposes is that a sentencing authority's discretion must be circumscribed in some meaningful way.
