Bernard J. GOODHEART, et al. v. The Honorable Robert P. CASEY, in his capacity as Governor of the Commonwealth of Pennsylvania, The General Assembly of the Commonwealth of Pennsylvania, The State Employees Retirement Board, and G. Davis Greene, Jr., in his capacity as Treasurer of the Commonwealth of Pennsylvania. Appeal of The STATE EMPLOYEES RETIREMENT BOARD. Francis J. CATANIA, et al. v. COMMONWEALTH of Pennsylvania, STATE EMPLOYEES RETIREMENT BOARD and Robert L. Cusma, in his capacity as Secretary of the State Employees Retirement System and R. Budd Dwyer, in his capacity as Treasurer of the Commonwealth of Pennsylvania. and Richard B. KLEIN v. COMMONWEALTH of Pennsylvania, STATE EMPLOYEES RETIREMENT BOARD. Appeal of Richard B. KLEIN.
Supreme Court of Pennsylvania
October 23, 1989
Reargued May 9, 1989
565 A.2d 757
ZAPPALA, J., joins this dissenting opinion.
Richard B. Klein, pro se.
LeRoy S. Zimmerman, Atty. Gen., Susan J. Forney, John G. Knorr, III, Sr. Deputy Attys. Gen., Andrew S. Gordon, Chief Deputy Atty. Gen., for appellee.
Before NIX, C.J., and FLAHERTY and McDERMOTT, JJ.
OPINION OF THE COURT
NIX, Chief Justice.
On March 3, 1989, this Court handed down opinions announcing the judgment of the Court in the above captioned appeals granting the relief requested by the appellants therein1 with one Justice dissenting in both matters.2
The instant opinion is written to address the issues that have been raised in the applications for reconsideration filed herein. This Court, after receiving the applications entered an order on May 9, 1989, granting them, in part, by directing the parties to brief the specific issues set forth in the applications for reconsideration. The Court denied the request for oral argument. After consideration of the briefs, for the reasons herein stated, we reaffirm our prior judgment entered in these matters.
The attack upon the rationale employed in the opinion announcing the judgment of the Court in Goodheart, in essence, challenges the implicit acceptance in that opinion that retirement benefits were a part of judicial compensation. The attempt to extract from
The reason for this pension rule in Pennsylvania is that a public employe‘s compensation includes pension credits as well as salary. Accordingly, one who has rendered service for this agreed compensation has earned both his salary and his pension rights. Wright v. Retirement Board of Allegheny County, 390 Pa. 75, 79, 134 A.2d 231, 233 (1957) (footnotes omitted).
In framing this argument, SERB has been reluctant to admit that it is contending retirement benefits constitute a gratuity in contrast to earned deferred compensation. To rely upon the separate salary references in section 16(a) and section 16(b) to support a thesis that retirement benefits have been transformed into a gratuity separate and apart from the compensation package of the active judge, is at best, disingenuous. To ascribe to the drafters of the 1968 amendment to the judiciary article the intent to change a firmly established principle in our law in such a cryptic and obscure fashion is totally unwarranted. We, therefore, dismiss this challenge as being devoid of merit.
We also dismiss in summary fashion the applicability of the popular sovereignty arguments in the instant matters. Here SERB focuses upon
The proponents of this argument attempt to blur the distinction between a constitutional declaration of right
The popular sovereignty argument, which supported our finding in Gondelman v. Commonwealth, supra, is totally inapplicable to the issues presented in the instant appeals. In Gondelman, we were concerned with allegations of an alleged conflict between two provisions of the Pennsylvania Constitution. In that context, it was appropriate to center our analysis on the inherent power of the people to structure their government as they see fit. In contrast, we are here called upon to scrutinize the constitutionality of a legislative enactment. The instant appeals
The serious challenge raised herein, which occasioned the grant of the petitions for reargument, is that two members of this Court improperly participated in the decision in these appeals. It is asserted that the Justices in question, being members of the class involved in the litigation, possess a direct personal, substantial, pecuniary interest in its outcome and that their participation violates both the Due Process Clause of the United States Constitution and the Code of Judicial Conduct.
In analyzing the federal due process claim raised herein, we begin by noting that not [a]ll questions of judicial qualification ... involve constitutional validity! Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 1584, 89 L.Ed.2d 823 (1986); Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927). As a general rule, matters relating to judicial disqualification would not rise to a federal constitutional level. Aetna Life Insurance Co. v. Lavoie, supra. However, in Aetna, the Court reaffirmed its earlier holding in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); Tumey v. Ohio, supra, to the effect that the Fourteenth Amendment Due Process provision is offended where a jurist
whether the situation is one which would offer a possible temptation to the average judge to ... lead him not to hold the balance nice, clear and true. Ward v. Village of Monroeville, 409 U.S., [57] at 60, 34 L.Ed.2d 267, 93 S.Ct. 80, [83] 61 Ohio Ops 2d 292.
The Aetna court, after applying the standard of holding the balance nice, clear and true, further refined this concept by noting,
The Due Process Clause may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. (Citation omitted.)
It is therefore clear that an evil motive is not a prerequisite to a determination of whether a litigant‘s due process rights are implicated. The integrity of the tribunal in meeting its obligation to perform its high function in the best way, ... must satisfy the appearance of justice. Id. at 825, 106 S.Ct. at 1587, citing In re Murchison, supra 349 U.S. at 136, 75 S.Ct. at 625. One therefore can become an interested judge in this due process context where the judge is conscientiously attempting to perform his judicial duties in accordance with the highest traditions established for that esteemed office. Thus the key is not in determining whether there is the slightest pecuniary interest, 475 U.S. at 825, fn. 3, 106 S.Ct. at 1587 fn. 3, but rather an objective standard as to whether the interest would lead the average judge proceeding in accordance with the accept-
Even if we accept, for purposes of our due process analysis, that the instant justices were interested judges and thus subject to disqualification in this matter, the question remains as to the appropriate remedy for such a violation. The United States Supreme Court in Aetna wrestled with the question of whether a decision by a multimember tribunal must be vacated because of the participation of an interested member. That Court recognized the judgment need not be disturbed where the participating interested judges’ votes were mere surplusage. The persuading factor in Aetna in the decision to vacate the judgment of a nine-member court was that the judge in question played a leading role in the decision reached. He authored the opinion and cast a decisive vote in a five-to-four decision.
In the instant case the interested justices did not provide decisive votes for the result, nor did either of them author the Court‘s opinions in this matter. In both of these decisions, the vote was six-to-one in favor of the position of The Judges. Thus, without the vote of the interested justices, the same result would have obtained. Neither of these cases were decisional in that no view espoused obtained a majority of the Court. Unlike the factual setting in Aetna, no new principle of law was established and the opinions filed merely announced the judgment of the Court. Moreover, the only opinion joined in by the two interested justices was not a new theory that changed the law in this Commonwealth; rather it was an application of the well established equal protection analysis.5 It is therefore appropriate to view the participation of the interested justices in this instance as mere surplusage and, therefore, the vacating of the judgment rendered would be entirely inappropriate in this context. This decision is further bol-
Having rejected the argument that the due process claim requires the vacation of the judgment previously entered, we now turn to the asserted violation of the Code of Judicial Conduct. Specifically, Canon 3(C) which addresses the issue of disqualification provides: (1) a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, ...; (d)(iii) where he has an interest that could be substantially affected by the outcome of the proceeding;.... Even if there was a clear violation of this provision, it would not support SERB‘s position that the judgment must be vacated. Canon 3(C) does not confer substantive rights upon the parties to the litigation in question. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). The Code of Judicial Conduct, of which Canon 3 is a part, provides standards of conduct to be referred to by a judge in his self-assessment of his conduct as a jurist. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, supra 507 Pa. at 219, 489 A.2d at 1298. If the norm of conduct set for judges is violated, that is a matter for this Court to address under the powers vested in it pursuant to
Under our substantive law a party to an action has the right to request the recusal of a jurist where that party has a reason to question the impartiality of the jurist in the cause before the court. See generally, Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Reilly by Reilly v. SEPTA, supra; Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983);
[A]ppellant chose to remain silent, resorting to the unconscionable and reprehensible tactic of laying in the grass, waiting until the decision and then raising the disqualification issue only if they lost.
We cannot say that this characterization, although somewhat florid, is either inaccurate or unfair. The case law in this Commonwealth is clear and of long standing; it requires a party seeking recusal or disqualification to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred. Reilly, supra. Under our law, a strong tradition has been established which recognizes that each judge has the primary responsibility for determining the validity of a challenge to his or her participation in a given matter. Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985); see also, Commonwealth v. Cherpes, 360 Pa.Super. 246, 520 A.2d 439, appeal denied, 515 Pa. 612, 530 A.2d 866 (1987);
This view rests upon the sound premise that the jurist requested to recuse himself is the most capable to determine those factors hidden in the recesses of the mind and soul which would bear upon his or her capability to maintain the impartiality that each matter must receive. That exercise of conscience was intended to be aided by Canon 3(C) which provides some of the factors bearing upon such an evaluation. The decision of that judge is final, subject to review only for an abuse of that discretion. Crawford‘s Estate, 307 Pa. at 108-109, 160 A. at 587 (1932); Wallace v. Jameson, 179 Pa. 98, 36 A. 142 (1897). Where the asserted impediment is known to the party, and that party fails to promptly direct the attention of the jurist to that fact, the objection is waived and the party may not subsequently offer the objection as a basis for invalidating the judgment. Reilly 507 Pa. at 222, 489 A.2d at 1300. See generally, Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966); Bourd v. Berman, 359 Pa. 183, 58 A.2d 442 (1948); Parke, to Use of Thomson v. Pennsylvania Threshermen & Farmers Mutual Casualty Insurance, 334 Pa. 417, 6 A.2d 304 (1939).
We have also long recognized that under our tradition it has been a cardinal rule that the law will not suppose a possibility of bias or favor in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. 3 W. Blackstone, Commentaries 361. While it is expected that conflicts may arise where the judge has the duty to disqualify himself in the appropriate case, this obligation should not be used as a guise for the judge to avoid difficult or unpleasant decisions. See, e.g., Smith v. Danyo, 441 F.Supp. 171, (M.D.Pa.1977), aff‘d, 585 F.2d 83 (3d. CA 1978). Drawing the balance, nice, clear and true, between the obligation to dispose of the matters that come before the court and the duty to disqualify in those instances where the jurist‘s impartiality might be legitimately questioned is often diffi-
Unlike a trial court where one judge presides, courts en banc, panels or en banc intermediate appellate courts, the Supreme Court is constituted so as to provide its full complement of seven members to consider all of the matters that come before it. Its responsibility to interpret and develop the law of this Commonwealth mandates that its full membership be available and participate in all matters that come before that Court. A state as diverse in cultures, interests and ethnic stock as this Commonwealth increases the importance of assuring that the questions before this Court receive the reflective judgment enriched by the varied perspectives of its members that participate in reaching that judgment. The expression of concurring and dissenting views assures a more complete exposition of the reasons underpinning the judgment and aids in evaluating the wisdom of the majority position. Quite frequently the dissenting view today becomes the majority view of the future. Thus this Court was structured so that, except for good cause, the full complement of the Court should participate in the judgments of this Court. Failure to recuse, standing alone, is not a basis for collateral attack upon a jurist.
Where there is a question of the impartiality of one or more of the Justices, it is the individual Justice‘s responsibility to make a conscientious determination whether he or she can impartially assess the issues in question. It is to be emphasized that this assessment is two tiered. First, whether the Justice would have a personal bias or interest which would preclude an impartial review. This is a personal and unreviewable decision that only the jurist can make. Second, whether his participation in the matter would give the appearance of impropriety. [T]o perform its high function in the best way, justice must satisfy the appear-
There are frequently instances where the Justice is satisfied after the first assessment that he or she will be able to render an impartial judgment, but agrees to recusal because an objection has been raised. The second assessment is of lesser importance because appearances are not justice. When a request for recusal is made upon the record, and the alleged impediment is made public, appearance alone diminishes in importance and must be counterbalanced by the need for consideration by a full complement of the Court, as noted above.
When, however, the Justice, after the first assessment, determines that he or she can render an impartial judgment, that judgment on recusal will not be reviewed by any source, in any forum, as a result of belated complaints of improper participation. Where disqualification is raised before the Court and the merit of the motion obvious, the remaining Justices have the duty to request that Justice to accede to the recusal request. In the case, sub judice, the facts suggesting the disqualification were known or should have been known when the case was called for argument and are therefore waived. This is so because the jurist, under such circumstances, may properly assume that the lack of objection by the litigants reflects the appropriateness of his or her participation.
For the foregoing reasons, we conclude that the objections were without merit and that the prior judgments of the Court entered in these matters are affirmed.
LARSEN, ZAPPALA and PAPADAKOS, JJ., did not participate in the reconsideration and decision of these cases.
McDERMOTT, J., files a concurring and dissenting opinion.
After reconsideration and the careful, learned analysis of the Chief Justice for the majority, I regret I cannot agree that prospective compensation, including pension, are not the prerogative of the Legislature. However, I join the majority opinion on the issue of recusal.